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Author: 



Commons, John Rogers 



Title: 



Principles of labor 
legislation 

Place: 

New York 

Date: 

[1 920] 



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Commons, John Rogers, 1862- 

Principles of labor legislation, by John R. Commons 
... and John B. Andrews ... prepared in co-operation 
with the American bureau of industrial research. rRev. 
ed.] New York and London, Harper & brothers f 1920] 

xii p., 1 1., 559 p. 20i"». [Harper's citizens series, ed. by W. F. Wil- 
loughbyj 

"Select critical bibliography": p. (501]-525. 

1. L^^bor laws and legislation — U. S. 2. Labor laws and legislation. 
I. Andrews, John Bertram, 1880- joint author, ii. American bureau 

of industrial research, in. Title. 

20—14069 

Library of Congress • HD7834.C65 1920 



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Principles of labor legislation 



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PRINCIPLES OF 
LABOR LEGISLATION 



HARPER'S CITIZENS SERIES 

EdiUKi by William F. WiLLOOGHsr 

tics. American DiSomacy "aid fThJ^'tK^'"'^"'^''/'^"' ^tatis- 
concern to every intelliS'«f,?r?«n* ^ *^^'n^''' of immediate 
which are being w^rittin hv K-^ *"*^ ?***?«"' These bookr 
to meet the infreasi'ng needl of '?5llt"*i'°"*'r ."^« P'-^P^'"^ 
meet requirements, nSt now suDnneH^.V*"'*^^^^^. *''*»'«> 
in the most immedi'at. sub" elts of Sriirnt '^**^"^ interest^ 

^^C^^^^^^^^^ By JoH. R. 

University. ' "^'^ent of the Johns Hopkins 

PRINCIPLES OF AMERICAN DIPLOMACY Rv t« 
Bassett Moore. Profeasnr nf r^i :• . , ^ -^o^n 

r%r5^eAStt^?l3^ 

etc -mbe^STheVt^rnt^Sra^fh^^^^^^^^^^^^ ^^'^^^ 
plomlcy"?-^ ""^^ '•^^•^^ '™™ P-of. Moore's "American Di- 



BY 

JOHN R. COMMONS, LL.D. 

PBOFEBBOR OF POLITICAL ECONOMY, UNIVERSITY OF WISCONSIN 

FORMER MEMBER INDUSTRIAL COMMISSION OF WISCONSIN AND 

UNITED STATES COMMISSION ON INDUSTRIAL RELATIONS 

AND 

JOHN B. ANDREWS, PH.D. 

SECRETARY OF THE AMERICAN ASSOCIATION FOB 
LABOR LfGXSLATION, EDITOR OF THE "AMERI- 
CAN LABOR LEQISLATION REVIEW" 
LECTURER ON SOCIAL LEGISLATION 
COLUMBIA UNIVER8ITT 



PREPARED IN CO-OPERATION WITH 

THE AMERICAN BUREAU OP 

INDUSTRIAL RESEARCH 



y 



HARPER & BROTHERS. NEW YORK 
Established 1817 




^ 



HARPER & BROTHERS PUBLISHERS 
NEW YORK AND LONDON 



CONTENTS 



vL-i-t,^ . 



i3 



C13 



t: 



.V 



Pkinciplks of Labor Lkcislation 



Copyright, 1916, 1920, by Harper & Brothers 
Printed in the United States of America 
Published September, 1920 

O-U 



PAGE 

• 

Preface to Revised Edition xi 

Chapter I: THE BASIS OF LABOR LAW i 

1. The Labor Contract ' 

(i) Industry . . . . * ^ 

(2) Labor Law 3 

(3) Politics 4 

2. Individual Rights 5 

3. Due Process of Law ^ 

(i) Public Powers lO 

a. Power to Preserve Peace and Execute the Laws . 10 

b. The Taxing Power H 

c. Guardianship " 

d. Eminent Domain 12 

e. Proprietorship 13 

f. The Police Power 13 

g. Commerce Power and Federal Powers ... 15 
h. Police Power and the Constitution .... 15 

(2) Public Authorities 1 8 

a. The Executive 20 

b. The Legislature 21 

c. The Judiciary 22 

d. The Administration 23 

(3) Principles 24 

a. Public Benefit 24 

b. Equal Protection of the Laws 28 

Chapter II: INDIVIDUAL BARGAINING 35 

I. The Laborer as Debtor 35 

(i) Servile Labor 36 

a. Slavery . 36 

b. Serfdom 37 

c. Peonage 37 

(2) From Master and Servant to Employer and Employee 40 

a. Indentured Service 41 

V 



vi CONTENTS 

b. Apprenticeship '^ 

c. Contract Labor ^2 

d. Padrone System * * .5 

e. Imprisonment for Debt ....!!! 47 

f. Wage Exemption a-j 

g. Homestead Exemption * ^g 

h. Assignment of Wages \ Af\ 

2. The Laborer as Creditor ] * cq 

(i) Time of Payment *. ! ! 50 

(2) Place of Payment * * e^ 

(3) Basis of Payment .' .* 53 

(4) Medium of Payment .... * si 

a. "Living In" !!!.'.' 53 

b. Company Houses and Labor Camps .... 54 

c. Company Stores ee 

(5) Deductions e6 

(6) Mechanics' Liens and Wage Preference . ! ! ! 60 

3. The Laborer as Tenant ^j 

(i) Classes of Agricultural Workers . . . \ . \ 61 

a. Hired Laborers 52 

b. Tenants * 5- 

c. "Croppers" 5- 

(2) Agricultural Labor Legislation . . . \ \ \ \ 65 

4. The Laborer as Competitor gg 

(i) Protection against Immigrants .* ^q 

a. Induced Immigration yo 

b. Exclusion of Orientals 74 

c. The Literary Test 75 

(2) Protection against Convict Labor * 78 

5. Legal Aid and Industrial Courts %y 

(i) Private and Public Legal Aid ...!!.'! 82 

(2) Industrial Courts * 86 

Chapter III: COLLECTIVE BARGAINING 91 

1. The Law of Conspiracy qj 

(i) Origins of Collective Bargaining ...... 92 

(2) Doctrine of Conspiracy \ 97 

(3) Court Decisions jqi 

a. Strikes iqj 

b. Boycotts 107 

c. Picketing iqq 

(4) Restrictions on Employers and Employees . . . 113 

(5) Justification of True Collective Bargaining . . . 116 

(6) Damage Suits 121 

(7) English Law of Labor Disputes 123 

2. Mediation by Government 125 

(i) Definition of Terms 126 

(2) Foreign Countries 128 






CONTENTS vii 

PAGE 

(3) United States 135 

a. State Legislation . . 135 

b. Federal Legislation j-js 

3. Coercion by Government j^q 

(i) Restrictions on Strikes and Lockouts 149 

(2) Development of Coercive Intervention . . . . 152 

a. England ir2 

b. Australasia 153 

c. Canada and the United States 168 

4. Unions of Government Employees .175 

(i) Recognition of Unions 175 

(2) Cooperative Employment jgi 

Chapter IV: THE MINIMUM WAGE 182 

1. Economic Basis ,83 

(i) Low Wage Scale 183 

(2) Economic Weakness of Low-paid Workers ... 185 

2. Historical Development 187 

(i) Australasia 187 

(2) Great Britain joq 

(3) Other Countries Abroad .... igi 

(4) The United States .* ! ! 195 

3. Standards \ jgg 

(i) Australia 198 / 

(2) Great Britain 200 

(3) The United States 200 

a. Definition of the Living Wage 200 

b. Wage Losses from Unemployment .... 202 

c. Profits of the Business 203 

d. Substandard Workers 204 

4. Methods of Operation \ 205 

(i) Flat Rate Laws ,. . . 205 

(2) Wage Board Laws * . 206 

5. Results . . . \ 210 

(i) Changes in Wage Rates ! ! ! ! 211 

(2) Changes in Wages above the Minimum . . . .* 212 

(3) Effect on Unemployment 213 

(4) Effect on Industry .'.*.' 214 

(5) Effect on Trade Unionism ' ! 215 

(6) Effect on Efficiency ! .* .' 21s 

6. Constitutionality * * \ 216 

Chapter V: HOURS OF LABOR 221/ 

I. Maximum Hours . . . . 226 

(i) Children ..*.*!!!* 226 

(2) Women ! * * ' 230 

(3) Men ! ' * 247 

a. Public Work ; 248 

b. Private Employment: (a) Transportation;* (b) 



V ' 



^^ CONTENTS 

Mines and Tunnels; (c) Factories add Work- ''''''" 
shops 

c. Constitutionality ^^2 

2. Rest Periods 262 

(1) Daily Rest and MealTimes ^^^ 

(2) Night Work .... ^71 

(3) Saturday and Legal Holidays ^^^ 

(4) One Day of Rest in Seven . VX 

(5) Annual Vacations ^'^ 

284 

Chapter VI: UNEMPLOYMENT 

1. Regulation OF Privave Employment* Offices * * * * f? 

(i) Abuses of Private Agencies • • . 291 

(2) Restrictive Legislation ^^~ 

2. Public Employment Exchanges . ' ^^^ 

(i) State and Municipal Offices *^^ 

(2) Federal Activity ... ^^^ 

(3) European National Systems ^^\ 

3. Systematic Distribution of Public Work ^?, 

(1) Emergency Work .... ^ 

(2) Adjustment of Regular Work "^'^ 

4. Regularization of Industry ^'^ 

319 

Chapter VII: SAFETY AND HEALTH 

1. Reporting 323 

(i) Accidents ..'..., ^^^ 

(2) Occupational Diseases ^^'i 

2. Prohibition 32« 

(i) Exclusion of Persons . \ *^^^ 

a. Children: (a) Age Requirements; (b) Physical ^^^ 

Requirements; (c) Educational Require- 
ments; (d) Special Problems in Enforcing 
Restrictions on Child Labor ... 

b. Women: (a) Prohibited Employments; * (b) 

Childbirth Protection 7^6 

c. Men: (a) Physical Qualifications; (b) Technical 

yualifications . 

(2) Prohibition of Substances or Instruments ' * * ' ^1? 
3. Regulation .... • . . 354 

(1) Factories and Workshops \ \ ^^t 

a. Machine Guards '^^" 

b. Protection against Fire ^^^ 

c. Lighting, Heating, and Ventilation ! ' * * ^S 

d. Seats, Toilets, and Dressing-rooms * * ^. 

e. Protection from Infectious Disease ' ' * \(l 
/ X w.^"®"^®"^ House Manufacture . * ' ' ,aa 

(2) Mines and Tunnels . ' ' ' * ^?o 

a. Mining ....*** ^T' 

b. Work in Compressed Air . .* .' . .' * * \?i 



\ 



CONTENTS IX 

PAGE 

(3) Transportation 372 

a. Navigation 372 

b. Railroads and Street. Cars 374 

(4) Development of Standards 379 

(i) Defects of Early Legislation 379 

(2) The Method of Administrative Orders . . .381 

Chapter VIII: SOCIAL INSURANCE 383 

1. Industrial Accident Insurance 386 

(i) Rules of Employers' Liability 387 

a. Duties of the Employer 387 

b. Burden of Occupational Risks 388 

c. Fellow Servant Rule 388 

d. Contributory Negligence 390 

e. Assumption of Risk 39^ 

(2) Beginnings of Industrial Accident Insurance . . . 392 

a. German System 392 

b. Methods in Other Countries 394 

c. Inclusion of Occupational Diseases .... 395 

(3) Compensation Legislation in the United States . . 397 

a. Scope of Laws: (a) Employments Included; (b) 

Injuries Included; (c) Occupational Diseases 401 

b. Scale of Compensation: (a) Medical Attendance; 

(b) Waiting Period; (c) Compensation for 
Total Disability; (d) Compensation for Par- 
tial Disability; (e) Compensation for Death 403 

c. Rehabilitation 4io 

d. Method of Administration 410 

e. Security of Payment 4" 

2. Health Insurance 4^5 

(i) Early Steps in Health Insurance 416 

(2) Compulsory Health Insurance 4^7 

(3)' Maternity Insurance 422 

(4) Need in the United States 426 

3. Old Age and Invalidity Insurance 429 

(i) Unassisted Old Age Insurance 43^ 

(2) Assisted State Plans 43 1 

(3) Compulsory Systems 432 

(4) Straight Pensions 435 

(5) The Problem in the United States 437 

4. Widows' and Orphans' Insurance 439 

(i) Voluntary Life Insurance 439 

(2) Compulsory Insurance 44^ 

(3) Mothers' Pensions 44^ 

5. Unemployment Insurance 442 

(i) Voluntary Out-of-Work Benefits 442 

(2) The Ghent System 443 

(3) Compulsory Unemployment Insurance .... 444 



-JmttBM 



CONTENTS 

PACE 

Chapter IX: ADMINISTRATION 449 

1. The Executive 45 

2. The Legislature ^^g 

3. The Judiciary ^^ 

4. The Industrial Commission ^ ^ 

(1) Administrative Investigations 4°" 

(2) Reprcscntation^of Interests 479 

(3) Civil Service 4 

(4) Bill Drafting ^ 

5. Penalties and Prosecutions 4y 

6. COOPEFJ^TION BY PRESSURE 4>^ 

Select Critical Bibliography. 5oi 

Table of Cases Cited ! ! ! ! 537 

Index 



PREFACE TO REVISED EDITION 

In January, 19 16, when this book was first offered to citizens 
and students, the United States possessed for its half -million 
civil employees in case of injury "the worst compensation law 
in the world," and no protection at all for their old age or in- 
validity. There was no Federal legislation against child labor, 
and little against excessive hours in railroading. The country 
had never had a unified system of public employment offices. 
Restoration to earning power of industrial cripples had hardly 
been thought of. Agitation for universal workmen's health 
insurance was just beginning. Regulation of shop conditions 
by administrative orders had still to win wide acceptance. 
Such important matters as the legal minimum wage, hour 
legislation for men in general employments, and even work- 
men's compensation for accidents, were trembling in the scales 
of the United States Supreme Court. 

The four and a half intense years which have intervened 
were not without their quickening influence in the field of labor 
legislation. A new sense of the worth, perhaps also of the 
power, of the ordinary man and woman of toil has shot through 
the thinking of lawmakers. The result is written large upon 
the pages of the statute books. The United States govern- 
ment has now a compensation law for its own employees — 
enacted in 19 16, the year of a presidential election — which 
stands as a model to the states and to other countries. Rail- 
roading has been put upon the basic eight-hour day. Federal 
restrictions on child labor, based on the power to regulate 
interstate commerce, were hardly declared unconstitutional 
when they were reenacted under the taxing power. For a 
period during the war a national employment service was ex- 
tended throughout the country. Finally, 1920, another presi- 
dential year, resulted in the adoption by Congress of a Federal 
civil service retirement act and of a measure for government 
aid to states adequately providing for the retraining of indus- 
trial cripples. Meanwhile, Supreme Court decisions have sus- 



1 



Xli 



PREFACE 



tained hour legislation for men, minimum wage laws, and sev- 
eral different types of workmen's compensation acts. 

In the same four and one-half years the states have not been 
idle. Twelve new commonwealths enacted workmen's com- 
pensation laws, leaving by 1920 only six which had not taken 
this first step in a comprehensive social insurance prograrn. 
Commissions to study health insurance were established in 
eleven states, and in New York a health insurance bill backed 
by the trade union movement was passed by the Senate. 
Three new states adopted the eight-hour day for women, and 
five jurisdictions enacted minimum wage legislation. Other 
progressive laws, as well as amendments^ gradually strength- 
ening existing statutes, and a general tightening up of ad- 
ministrative supervision, have followed one another rapidly. 
Despite a few setbacks, the trend has been strongly toward 
more thorough protection of the lives and welfare of the 
wage-earning population. 

In all this forward development it is only the details of the 
labor code which have changed. The fundamental principles 
on which the legislation is based remain as they were. No 
important stand taken in the first edition of this book has yet 
had to be modified. For additional details of statutes enacted 
year by year, the reader is referred to the annual Review of 
Labor Legislation, published by the American Association 
for Labor Legislation. This Review, it may be added, is so 
arranged as to serve as a convenient supplement to the present 
work. For assistance in checking up the new experience and 
in bringing the text down to date, grateful acknowledgment is 
due to Margarett A. Hobbs, Olga S. Halsey, Irene Sylvester 
Chubb, and Solon De Leon, of the staff of the American Asso- 
ciation for Labor Legislation; to Edwin E. Witte, secretary 
of the Industrial Commission of Wisconsin; to Mrs. Glenn 
Turner, of the Wisconsin Legislative Reference Library; and 
to Prof. Don D. Lescohier, of the University of Wisconsin. 

John R. Commons 
John B. Andrews 

June, ig20. 



PRINCIPLES OF 
LABOR LEGISLATION 



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1 



b 



PRINCIPLES OF 
LABOR LEGISLATION 



CHAPTER I 

THE BASIS OF LABOR LAW 

Modem industry is mainly a matter of buying and selling. 
Scarcely any person lives on the things which he alone pro- 
duces with his own property. Formerly the protection of his 
person and his physical property was the principal part of the 
law. Now the protection of that intangible property which 
arises through buying and selling and is defined in the law of 
contract, occupies the attention of lawmakers, courts, and 
the administrative authorities. 



/ 



I. The Labor Contract 



The labor contract is one of several kinds of contract, which 
until recently has differed from the others but little in the 
eyes of the law. Like the others it originates in an agreement, 
implies a promise, creates rights and duties, and is enforced, 
if need be, by the power of the state.^ 

But the labor contract, in course of time, has come to be 
recognized as something peculiar. When a bushel of wheat 
is bought and sold, when a factory or farm is transferred, 
when a banker receives deposits or lends his credit, when a 
corporation issues stocks or bonds, the rights and duties created 
thereby can be fulfilled by delivering something external and 



H 



a PRINCIPLES OF LABOR LEGISLATION 

unhuman. But when a laborer agrees to work he must deliver 
himself for a time into the control of another. He earns his 
living, not by working upon his own property, but by working 
upon the property of another, and by accepting all the con- 
ditions he finds there. And, if he has no property of his own 
sufficient to fall back upon, he is under an imperious necessity 
of immediately agreeing with somebody who has. This pe- 
culiar rclation'betwcen a propertylcss seller of himself, on the 
one hand, and a propertied buyer on the other, coupled as it 
is with equal suffrage of both in the politics of the country, 
has gradually acquired recognition as something sufficiently 
important for the government to take notice of. | While the 
courts and law books have dealt with the labor contract as 
similar to other contracts, legislation goes behind the legal 
face of things and looks at the bargaining power which pre- 
cedes the contract. It distinguishes the price bargain, the 
investment bargain, the real-estate bargain, and others, from 
the wage bargain. The former are dealings between property- 
owners. The latter is a bargain which involves not only 
wages, but also hours of labor, speed and fatigue, safety and 
health, accident and disease, even life itself;^ Unemployment 
is failure to make such a bargain; immigration, child labor, 
education, prison labor, collective bargaining, and so on, are 
conditions which determine the bargaining power of the 
laborer. I Every topic in labor legislation is a phase of the 
wage bargain, and it is because a large class of people have 
come to depend permanently, not on their property or re- 
sources, but on these bargains with property-owners, that 
labor legislation has significance. ^ 

This spectacle of the free laborer, without property but with 
the ballot, bargaining for his livelihood but electing his rulers, 
is something new and unaccustomed, measured by the life of 
nations. It has come about through what may be called in- 
dustrial, legal, and political changes. 



(i) Industry 

Scarcely a generation has passed since the natural resources 
o£ the coimtry were sufficiently free to permit people without 



THE BASIS OF LABOR LAW 



} 



1 



property to acquire ownership merely by labor. ' The home- 
stead laws, culminating in 1862, may be looked upon as early 
labor legislation, for they were intended to provide "free 
land" by preventing the pubHc domain from falUng into the 
hands of capitalists and slave-owners and so to furnish an out- 
let to laborers from the East J-Workmen who could not be- 
come farmers or miners could! become tradesmen and inde- 
pendent mechanics in the new towns. But since the lands 
have been closed by occupation, and their values have in- 
creased, money or credit is required to ptu*chase them. This 
means that laborers without capital must seek capitalists to 

employ them. 

In 1869 the first Pacific railway was completed, and im- 
mediately Chinese coolies made their appearance in Massa- 
chusetts as strike-breakers, and the manufactured products of 
Massachusetts contributed to unemployment in California. 
The railway and steamship have made labor almost as mov- 
able as capital, and any bargaining advantage which wage- 
earners have in one section of the country is quickly levelled 
by migration. 

Huge factories and corporations were almost unknown a 
generation ago, but now the United States Steel Corporation 
has some 200,000 employees, and single establishments have 
thousands and ten thousands. The special bargaining power 
of skilled mechanics is levelled down to that of the lesser 
skilled. 

[Thus the three industrial factors of closed land, labor 
mbbility, and large scale production have produced a class 
permanently dependent on wages. JL^ 



^ 



\ 



(2) Labor Law 



When land and natural resources were free, labor was not 
always freeJl Slave labor in the South, indentured labor and 
apprenticeship in the North and South, contract labor from 
abroad, were based on legal devices by which the laborer 
could be kept from running away. Not until the enactment 
of the thirteenth amendment, following the Civil War, did 
slavery and involuntary servitude, except as a punishment 



t 



4 PRINCIPLES OF LABOR LEGISLATION 

for crime, become everywhere illegal.*/ The labor contract 
henceforth has its peculiar significance. Although in theory 
it is like other contracts, yet it cannot in fact be enforcedr-/^ 
The laborer cannot sell himself into slavery or into involun- 
tary servitude. He retains the right to change his mind, to 
quit work, to run away. Certain other contracts can, in the 
absence of any other sufficient remedy, be enforced by the 
courts by compelling "specific performance." ^ But specific 
V performance of the labor contract is involuntary servitude. 
Business contracts, if violated, are ground for damages which 
the court orders paid even to the extent of taking all of the 
business property of the debtor. The labor contract also, if 
violated, is ground for damages, but for the court to order 
damages paid out of labor property would be to order the 
laborer to work out the debt. This is involuntary servitude. 
Hence the employer is left with the empty remedy of bringing 
suit against a propertyless man. He can protect himself by 
making contracts which he also can terminate at any time 
\w discharging the workman without notice. 
[ Thus the labor contract becomes, in effect, a new contract 
every day and hour. It is a continuous process of wage bar- 
gaining. It carries no effective rights and duties for the 
future and is as insecure as it is free. After land has ceased 
to be free the laborer becomes free. Closed resources and 
freedom with insecurity produce in time a permanent class 
of wage-earners. \ 

(j) Politics 

In the northern states the suffrage was granted to all male 
wage-earners during the years preceding 1845, by removing 
the property qualifications.^ This was as much as forty to 



* Constitution of the Unitcxi States, Amendments, Art. XIII: 

"Sec I. Neither slavery nor involuntary servitude, except as a 
punishment for crime, whereof the party shall have been duly con- 
victed, shall exist within the United States, or any place subject to 
their jurisdiction. 

"Sec. 2. Congress shall have power to enforce this article by ap- 
propriate legislation." 

The exception in the ca«e of the seaman's contract will be noted later. 

•See Andrews, Americaa Law, 1908, Vol. I, pp. 582, 1586. 

' Rhode Island was the only northern state that retained the property 
qualification* 



I 



/ 



THE BASIS OF LABOR LAW 5 

sixty years in advance of other nations, and was, in fact, the 
first experiment in the world's history of universal admission 
of the propertyless laborer to an equal share in government 
with the propertied capitalist or employer. A similar experi- 
ment was made in the So\ith after the slaves were freed by 
war. Henceforth the laborer not only shares in electing the 
legislature that makes the law, but he shares in selecting the^ 
judges who interpret it and the governors, factory inspectors, 
sheriffs, marshals and constables who enforce it. The labor 
contract and the wage bargain become as much a question of 
the control of politics as they are of large-scale industry and 
the mobility of laborf^Wherever property-owners or em- 
ployers can deprive the laborer of his suffrage or can control 
his vote, there they can more effectively control his bargaining 
power. He may be disfranchised, as in the South, or intimi- 
dated, as in some towns controlled directly by corporations, or 
manipulated and bought, as in towns controlled indirectly 
through the political "machine." So the struggle for the suf- 
frage, begun ninety years ago in the North, renewed in the 
struggle of twenty years ago for the secret ballot, and kept up 
in the struggle against political corruption, is both a cause 
and a consequence of the appearance of wage-earners as a 
class in modem industry. 



t 



2. Individual Rights 



Federal and state constitutions contain the fundamental 
laws and create the authorities of government with the power 
to interpret, amend, and enforce them.i-'The Declaration of 
Independence and most of the state constitutions declare that 
all men are created equal. Prior to the Civil War certain of 
the southern states declared only that all freemen are equal. 
Those constitutions were afterward changed to read all men 
are equal. Some constitutions say that they are "equally free 
and independent." If they are equal, they have equal rights. 
Some of these rights are declared to be natural, essential, in- 
defeasible, inalienable. Among the inalienable rights men- 
tioned in different constitutions are life, liberty, the pursuit 
of happiness, acquiring, possessing and protecting property, 



It * 



/ 



6 PRINCIPLES OF LABOR LEGISLATION 

reputation, and enjoyment of the gains or proceeds of a man's 

own labor. 1 

The federal constitution guarantees certain means for pro- 
tecting these rights, and prohibits certain measures that vio- 
late or impair them. Among the protective measures are the 
writ of habeas corpus, trial by jury, a republican form of gov-C 
emment, freedom of speech or of the press, the right peaceably 
to assemble and to petition the government for a redress of 
grievances, the right to keep and bear arms, security against 
unreasonable search and seizure of persons, of houses, papers 
or effects, indictment by a grand jury, speedy and public 
trial, compensation for property taken for public use, due 
process of law, equal protection of the laws. Among the pro- 
hibited measures are bills of attainder, ex post facto laws and 
laws impairing the obligation of contracts. Finally, the 
enunciation of certain rights cannot be construed to deny or 
disparage others retained by the people. These restrictions, 
however, with the exception of those insuring equal protection 
of the laws and the obligation of contracts, are binding on 
Congress and not on the states. The fourteenth amendment 
prohibits any state from denying due process of law and equal 
protection of the laws, but under the decisions of the courts 
this protection does not extend to other rights guaranteed in 
the early amendments to the constitution, which, as has just 
been said, are protected only against infringement by Congress.^ 



^The Declaration of Independence is "read into" the constitutions, 
where it says: "We hold these truths to be self-evident, that all men 
are created equal, that they are endowed by their Creator with certain 
inalienable rights, that among these are life, liberty, and the pursuit of 
happiness." Twenty-eight state constitutions declare that men are 
naturally equal. Five restricted this to "freemen" before the Civil 
War and afterward changed the phrase (Kansas, 1858).^^ Three states 
assert the equality of all men framing a "social compact." Thirty-five 
states have clauses embodying the doctrine of natural rights. The 
right of acquiring property, by which contract is understood, is claimed 
as an inalienable natural right by twenty-six states. Three states in- 
clude the right to reputation, which may be considered as a kind of 
property. The enjoyment of the gains of a man's own industry, or 
of the proceeds of his labor, is an inalienable right in two states. Kansas 
specifies the right to control over one's own person. Montana, when 
mentioning the right to seek and obtain safety and happiness, adds the 
proviso "in all lawful things." ,, . ^ o ir 1 t 

'Willoughby, Constitutional Law of the Untted States, 1910, Vol. 1, 

pp. 175 ff- 



THE BASIS OF LABOR LAW 7 

If certain rights, such as life, liberty, and property, are strict- 
ly and literally "inalienable," then they cannot either be 
given away by any person or taken away by any other person 
or by government, either by coercion or by persuasion, either 
by violence or by volimtary sale and compensation. If the 
owner sells them, they are worthless to the buyer, because he 
gets no title. Of course, it follows that these rights were 
never considered strictly "inalienable." Only an impossible 
anarchist could believe this. The fourteenth amendment 
partly clears the atmosphere. "Privileges and immunities" 
are substituted for inalienable rights. Life, liberty and prop- 
erty can be t^en provided it be done according to "due proc- 
ess of law." /"Equality" becomes "equal protection of the 
laws." In other words, rights become "relative," not "abso- 
lute," alienable but protected, -p 

But, if rights are relative, then their meanings and defini- 
tions are liable to change when the relationships to which 
they refer happen to change. The rights of property are de- 
fined in several constitutions as the right of acquiring, possess- 
ing and protecting property. These were the significant points 
in the definition when people were isolated, as they were in 
colonial and pioneer times. At that stage, their main con- 
cern was in getting and holding physical property, like lands, 
crops or even human beings, if the definition of property in- 
cluded slaves. But in modem society, based, as it is, mainly 
on buying and selling, the right to withhold property from 
others becomes significant. It is this that protects the in- 
dividual in his power of bargaining — his power, protected by 
law, to hold back and wait until an agreement can be reached 
upon the exchange value of the property before permittipg 
others to take it or use it. 

This right to withhold property is like the laborer's right 
to withhold his labor, by refusing to work or by quitting 
work. But in the case of the laborer this is also "liberty" — 
a "personal" right rather than a "property" right. It is his^ ^^^^^ 
right to withhold his services from the use of others until? ,,_^ \ 

their value can be agreed upon. This is the legal basis of hi^' ^ 

I wage bargain. 

I Hence property and liberty change places and merge their 
meanings when industry changes from the agricultural stage 






I 



8 PRINCIPLES OF LABOR LEGISLATION 

of production for self to the modem stage of bargaining with 
others./ The wage-earner's "property" becomes his right to 
seek ah employer and to acquire property in the form of 
wages; his property in the sense of liberty is his right to 
refuse work or to quit work if the conditions are not satis- 
factory. The employer's "property" is, in part, his right to 
seek laborers and acquire their services; his property, in the 
sense of "liberty," is his right to run his business in his own 
way, that is, in part, to withhold employment or to dis- 
charge the laborer if the bargain is unsatisfactory. 

These definitions of property rights are evidently quite dif- 
ferent from the older ideas of property in physical things, such 
as lands, buildings, machinery or slaves. They signify nghts 
of buying and selling, of access to a market. They are "m- 
tangible" property, and not "tangible." They are like the 
"good will" of a business. They are defined as "property 
because they are necessary to give to things and services that 
value in exchange which in modem industry depends as much 
on selling them as it does on "producing" them. 

Only within the past half-century have courts and legis- 
latures distinguished and protected such intangible property 
as good will, trade marks and trade names, based on the 
right of access to a commodity market, and still more re- 
cently has "access to a labor market" been treated in effect 
as a property right of both the laborer and the employer, m 
addition to a personal right. ^ Not merely the contract after 
it is made is property, but the right to be unhmdered by 
others in order to make a labor contract is a property nght. 
It is "intangible" property both of the laborer who seeks em- 
ployers and of the employer who seeks laborers. It is in- 
tangible because it is merely the act of offering and yet with- 
holding services or commodities. It is property and becomes 
capital in the sense that it is the power of getting value in 
exchange. Just as the employer's property is both his phys- 
ical factory and his intangible business, so the laborers 
property is both his physical body and his intangible labor. 
This "intangible" property has come to mean a part of what 

»See also Willoughby, Constitutional Law, Vol. II, p. 872; Hall, 
Con^tt^^al Law. 191I PP- I34. I35; "Doctrine of Conspiracy. 
P- 97- 



THE BASIS OF LABOR LAW 9 

was formerly known as personal liberty. It is that kind of 
liberty that has money value. It gives value alike to the 
laborer's labor and the employer's business, 
/if meanings of property and Uberty change with changes 
^n industry, so does the meaning of equality. Equality for 
the colonist and the pioneer signified mainly equal right to 
acquire property through labor — now it signifies equal right 
to acquire it through bargaining^ But where bargaining power 
on the one side is power to witnhold access to physical prop- 
erty and the necessaries of life, and on the other side is only 
power to withhold labor by doing without those necessaries, 
then equality of rights may signify inequality of bargaining 
power. The gradual recognition of inequalities of waiting 
power has required changes to be made in the legal means of 
protecting equality, and these changes underlie the history 
of labor legislation. They occur within limits prescribed by 
"due process of law." 

3. Due Process of Law 

The constitutions, which declare private rights inalienable, 
yet provide methods and standards both to abridge them and 
to protect them. A right has two sides. It is a right of one 
and a duty of another, or of all others. One person signs a 
note agreeing to pay $20 to another person. The second per- 
son has a right to receive $20— the first is under a duty to pay 
it. One person owns a piece of land. He has a right to use 
it as he pleases — all other persons are under the duty to keep 
off and let him alone. To protect the rights of one is to en- 
force the duties of others. If a right of one is abridged or 
reduced, the corresponding duty of another or of all others 
is reduced. If a debt is reduced from $20 to $10, both the 
right to receive and the duty to pay are reduced. If a 
person's right to use his land as he pleases is restricted, then 
the corresponding duties of others are reduced. On the other 
hand, a person's duties are just so much subtracted from 
the total of his rights, and so to reduce the amount of his 
duties is to enlarge the total amount of his rights. To reduce 
the rights of one is to enlarge the corresponding rights of others. 

Here must be noted the distinction already made between 



'i 



,\\ 



lO 



PRINCIPLES OF LABOR LEGISLATION 



the labor contract and the wage bargain. The two may b« 
diametrically opposed. From the standpoint of the wage 
bargain, if an employer's right to require a woman to work 
unlimited hours is reduced, then the woman's duty is conse- 
quently reduced and her rights enlarged. But, from the 
standpoint of the labor contract, she loses the right to con- 
tract for unlimited hours. This may be a mere fictitious 
right for her, existing only in the eyes of the law, whereas it 
is in reahty the right of the employer to compel her to work. 
From the legal standpoint her rights are abridged— from the 
economic standpoint they are enlarged. Likewise, from the 
legal standpoint the employer's duty is reduced when her 
hours of service are reduced. From the economic standpomt 
his duty i may be increased, if her bargaining power is in- 
creased. / It is this contradiction between the labor contract 
and the wage bargain that labor legislation attempts to 

reconcile.^. / 

The statb exercises the great and sovereign power of en- 
larging and abridging rights and duties without consent of 
the parties. This power is intended, under our constitutions, 
to be safeguarded most minutely and accurately. The safe- 
guards are developed with reference to an all-inclusive term. 

"due process of law." * 

i Due process of law, along with the provisions of the con- 
^ stitutions, determines both the substance and the procedure 
of government in three principal aspects: first, the pubhc 
powers, or the powers of government under which authonty 
is granted to protect, enlarge or abridge rights and duties; 
second, the public authorities, or the powers of officials acting 
within that authority; and third, the principles, standards or 
"maxims" that determine the limits beyond which pubhc 
powers and public authorities shall not go. Each of these 
aspects affects labor legislation. V^ 

(i) PMic Powers 

a. Power to Preserve Peace and Execute the Laws. Govern- 
ment exists, first of all, to enforce the duty to keep th« peace. 

1 See "Public Benefit," p. 24; "Equal Protection of the Laws," p. 28; 
•'Maximum Hours, Women," pp. 244-247. 



THE BASIS OF LABOR LAW 



II 



To do this it may use force. It is the custodian of physi- 
cal coercion and the authority that may threaten violence. 
Only in actual self-defense or in extreme urgency has an in- 
dividual the right to resort to violence. He must confine 
himself to persuasion in every other case. Groups of individ- 
uals may go on strike, may get together for free discussion, 
or for agitation and joint action, but they must assemble and 
act peaceably. Even though they suffer the greatest in- 
justice they must not go beyond the duty of obedience to 
law and order. The authorization, or "power," of the state 
to use violence in order to execute the laws, to protect person 
and property, to punish for crime, is its first and highest justi- 
fication, without which no other power could exist, and all 
government would be impossible. This is its exclusive au- 
thority, and it cannot compromise the question or permit 
private violence, except at the peril of its own existence! 
Under the justification of preserving the peace and executing 
the laws, the state may deprive individuals of Hfe, liberty, or 
property without consent or compensation. 

h. The Taxing Power. The taxing power is an authoriza- 
tion under which government takes private property for pub- 
lic purposes without compensation. By this authority the 
state provides for the most fundamental legislation for or 
against labor. It provides free schools, compulsory education 
for future workers, and pays the salaries and expenses of all 
officials who enforce the labor laws. A labor law is defeated 
as surely by voting against taxes to enforce it as by voting 
outright against the law itself. But the taxing power is used, 
not only for revenue, but also for purposes which otherwise 
are justified under the police power. A tariff on the products 
of foreign pauper labor is designed to strengthen the bargain- 
ing power of American labor. A tax on poisonous phosphor- 
us matches is placed so high that it brings in no revenue at 
all, and serves only to protect the health of employees. Under 
our form of government the poUce power belongs to the states 
and not to the federal government. But the federal govern- 
ment dcfes^ under the justification of the taxing power, what 
the states might do under the poHce power. 

c. Guardianship. The state is the universal trustee or 
guardian, and exercises the remnants of the authority which 



I 



I 



12 



PRINCIPLES OF LABOR LEGISLATION 



the monarch had as parens patricB, the "father of his country.** 
In mediaeval times the property of a chief tenant reverted at 
death to the king, and the children became the wards of the 
king, for the king's benefit. Now the state is trustee for the 
benefit of the children and the people. This power justifies 
child labor legislation. In the early law of patria potestas, or 
*' power of the father," the natural father was the owner of 
his child, as he was owner of his wife, lands, slaves and 
chattels. It was the child's duty to obey. Now, the child 
has many rights against its parent, and, since it is unable to 
enforce these rights itself when the parent violates them, the 
state intervenes as its guardian on behalf of the people of the 
future. 1 It takes the child away if necessary; it deprives the 
parent of his right to the child's earnings by prohibiting its 
employment or by reducing its hours of labor; it enforces the 
parent's duty of education by compulsory school attendance. 
Patria potestas yields to the authority of parens patricB. 
; This authority of the state is nowadays treated as a branch 
of the police power.^ As such, it is a justification for an ex- 
i treme use of the police power not permitted in other cases. 
It deals with children, unable to make bargains for themselves. 
The police power primarily interferes with the bargains of 
adults. Restrictions which the courts would not permit 
under other classifications within the police power are un- 
questionably approved when the justification of guardianship 
is merged with that of police. 

d. Eminent Domain. The state may be an owner of prop- 
erty and business, like a private person. It may acquire 
■ ownership by various methods, all of which rest ultimately 
on its sovereign power of coercion. Some of its properties 
are acquired by conquest. Others are purchased by voluntary 
bargain; others, by compulsory bargain, under the power of 
eminent domain. In either case the power of taxation may 
furnish the funds. 

Eminent domain is a justification of the state in taking 
f property from its own citizens without their consent. It dif- 
fers from the other powers in that it applies to an individual 
rather than to a class, and therefore our constitutions require 

iSee Andrews, American Law, pp. 652-654, and cases there cited. 
'Freund, Police Power, 1904, pp. 246-253. 



THE BASIS OF LABOR LAW 



13 



>1 



that compensation be made when property is taken. The 
individual has no inalienable right to withhold his property 
from the state, if the state desires it for a public purpose. 
But the constitutions protect the individual against the state 
by requiring just compensation. 

e. Proprietorship. Whether it acquires physical property 
or not, the state, in its various divisions of town, city, county, 
state, and nation, becomes an employer of thousands of wage- 
earners. It fixes their wages, hours and conditions of labor 
according to its own ideas as determined by its legislatures, 
executives, or courts. It is not restricted, as it is when exer- 
cising the police power, because it is not taking away private 
property (except perhaps as it falls back on the taxing power 
to pay the wages). Consequently, the American state, under 
universal suffrage and the power of proprietorship, or public 
ownership and operation of public business, supported by the 
taxing power, has gone far ahead of private owners in raising 
wages, shortening hours and improving the conditions of its 
employees. Even contractors, or private employers who work 
for the state, are required, under laws that provide for "fair 
wages," as in England, or for the "prevailing rate of wages," 
as in America, to pay higher wages or observe shorter hours 
than they might in their work for private capitalists.^ 

/. The Police Power. The police power is an indefinite 
authorization for the American state to abridge liberty or 
property without consent or compensation in addition to its 
other more definite powers. An individual is sick with diph- 
theria. The state draws the line of quarantine beyond which 
his family and friends are deprived of their liberty of move- 
ment. Valuable animals have the foot and mouth disease. 
The state may order them to be shot and buried without con- 
sent or compensation. A public utility corporation has the 
valuable bargaining power of fixing its prices for gas, elec- 
tricity, water, or transportation, and withholding service if the 
price is not paid. The state reduces the price and compels 
the company to continue or increase the service. The em- 
ployer has valuable rights in his defenses of assumption of 
risk, fellow servant, and contributory negligence in suits 

» See "Historical Development of the Minimum Wage, United States," 
p. 195; "Maximum Hours, Men," p. 251. 



14 PRINCIPLES OF LABOR LEGISLATION 

brought against him for damages caused by accident. The 
state takes away his defenses and increases by so much the 
value of the rights belonging to his employees. ^ Other 
examples might be given. The bulk of labor legislation by 
the states looks for authorization to the police power. 

The poUce power in the United States differs from other 
powers in the miscellaneous and indefinite range of subjects 
that it may cover. It is defined rather by what it does not 
cover than by what it does. It differs from the taxing power 
in that it reduces the owner's liberty to use, acquire, or own 
property, rather than the revenues derived from it. It dif- 
fers from eminent domain in that it applies to a class rather 
than to an individual and does not require compensation to 
be made. While it includes guardianship, it differs from it 
in that it abridges or enlarges the rights of adults and full 
citizens instead of those of children. It differs from public 
ownership and operation, or proprietary power, in that it 
abridges or enlarges the powers of private persons over their 
own persons or property instead of the power of the state 
over its own property or business. It differs from the power 
to use violence in order to keep the peace and execute the 
laws in that it is one of the justifications or reasons advanced 
according to which the state is authorized to enact the laws 
themselves, rather than the physical power to enforce them 
after enactment. It is the police power, not the pohce 

man. . , ^. j 

The other powers of the state, previously mentioned, are 
in theory definitely limited. Either they accomphsh only 
a specific object of government, such as conquest, peace, the 
execution of laws, the acquisition of revenues, or the purchase 
of property, or they extend only to a limited class of people, 
such as children or pubUc employees. But, in addition to 
these objects and persons, there are those large ami indefinite 
purposes of pubUc safety, health, morals, welfare, and pros- 
perity, and those many but indefinite classes of producers and 
consumers, buyers and sellers, employers and employees, 
who often are restrained by government under the pohce power. 
Moreover, these purposes and classes are continually changmg 



l.i 



THE BASIS OP LABOR LAW 



IS 



as industry changes from agriculture to commerce, or as prop- 
erty changes from physical things to bargaining and con- 
tracts, or as population becomes more congested and people 
interfere with one another, or as public opinion regarding 
rights and duties, morals and welfare, advances from igno- 
rance to intelligence, from servitude to liberty. It is the police 
power, for the most part, that affords, in the case of the state 
governments, that elastic justification by which the state 
abridges or enlarges liberty or property without compensation, 
in order to achieve a newly recognized public purpose through 
a newly recognized class of persons or things. 

g. Commerce Power and Federal Powers. The police power 
is not isolated from the other powers. All of them are but 
different ways of looking at the single power of sovereignty. 
But, under our system of government, sovereignty is divided 
between the federal government and the state governments. 
The federal government has specific delegated powers of taxa- 
tion, of regulation of foreign and interstate commerce, while 
the states have the taxing power, and, in addition, the "police 
power. ' * But the federal government uses its delegated powers 
to accomplish the same purposes that the states accomplish 
with their reserved police power. The taxing power is used 
by the federal government, not merely to secure revenue, but 
to protect industry and labor against foreign competition, or 
to suppress state bank-notes, colored oleomargarine, or poison- 
ous phosphorus matches. The "commerce" power is used to 
regulate railroad rates and services, to restrict hours of labor 
and to require the adoption of safety devices by railroad or 
steamship companies. New lines of legislation protecting 
labor, such as child labor and workmen's compensation, if 
adopted by state governments, are justified by the police power 
— ^if adopted by the federal government, they are justified by 
the taxing power or the commerce power. Yet all powers are 
but the single power of sovereignty split up to fit the constitu- 
tional divisions of government. ^ 

h. Police Power and the Constitution. From the foregoing, 



1 See " Industrial Aecident Insurance," p. 387- 



^ For detailed history of the conflict between the commerce and police 
powers, see Hastings, "The Development of Law as Illustrated by 
the Decisions Relating to the Police Power of the State," in Proceedings 
of the American Philosophical Society, 1900, Vol. XXXIX, p. 349. 



i 



) 



\\ 



16 PRINCIPLES OF LABOR LEGISLATION 

it will be seen how impossible it is accurately to define the 
police power, the taxing power, or the commerce power. Com- 
paring the poUce power with the principles of the common 
law Freund says^ the state "exercises its compulsory powers 
for the prevention and anticipation of wrong by narrow- 
ing common-law rights through conventional restraints and 
posftive regulations which are not confined to the prohibi- 
tion of wrongful acts. It is the latter kind of state con- 
trol which constitutes the essence of the police power. The 
maxim of this power is that every individual must submit to 
such restraints in the exercise of his liberty or of his nghts 
of property as may be required to remove or reduce the dan- 
ger of the abuse of these rights on the part of those who are 
unskilful, careless, or unscrupulous." ^ ^ ^ 

Describing this power as developed under Amencan institu- 
tions, Ely says -.2 "It is that power of the courts committed 
to them by American constitutions whereby they must shape 
property and contract to existing social conditions by settling 
the question of how far social regulations may, without com- 
pensation, impose burdens on property." 

Comparing it with other powers of government, Hastings 
says -.3 "It is not necessary to adopt Treitschkc's oft-repeated 
declaration, that the state is force, in order to conclude that 
the 'police power' is a fiction. Every judge whom we have 
seen attempt to analyze it finds in it Madison's 'indefinite 
supremacy' of the state. The doctrine of faculties and 
separate powers of the state may not be as essentially absurd 
as Treitschkc thinks, but in our case the term is certainly a 
mere abstract and collective one for the state, where regarded 
as employed in certain functions." Hastings also says that 
the police power is "a branch of constitutional law pecuhar 
to countries having legislatures with limited power. It is an 
outgrowth of the American conception of protecting the in- 
dividual from the state." * t '.' 
We may not say that the police power is a fiction, for it is 
a necessary part of the reasoning by which, under our federal 



« ^ptpeHyZnd Contract in Their Relations to the Distribution of Wealth, 
1914, Vol. I, p. 220. ., . 

» Hastings, op. at., p. 349- ^^^•' P* ^^• 



THE BASIS OF LABOR LAW 



X7 



constitution, the distinction is made by the courts between 
those powers that belong to the states and those that belong to 
the federal government. Yet, from another point of view, it 
is a fallacious distinction if it pretends to assign to the states 
a different kind of power from that exercised by the federal 
government. We have just said that the federal government 
accomplishes, under the name of "taxing power" or "com- 
merce power," what the states accomplish under the name of 
police power. While the refinements of legal logic may seem 
to make these powers different, they are identical from the 
standpoint of the kind of legislation and the public purpose 
which they justify. The police power has sometimes narrowly 
been held to be limited to matters of health and morals. But 
legislatures and Congress refuse to be limited in this way. 
They regulate the bargaining power of individuals and cor- 
porations where no justification can be found in the protec- 
tion of health and morals. From this standpoint the theory 
of the police power is used by the courts to determine how far 
the state legislature may be permitted to go. But they use 
similar standards or principles to determine how far Con- 
gress may go in using the taxing power and the commerce 
power. 

Hereafter, for our purposes, in speaking of the police power, 
we shall use the term in this broad sense, to imply all the 
powers of government, whether state or federal, whether of 
police, taxation, or interstate commerce, in so far as they are 
used to justify that indefinite extension of power to abridge 
liberty or property without compensation for some newly 
recognized public purpose. The practical problem with which 
we are concerned is not so much the technical legal distinc- 
tions between different powers, as the extent to which these 
powers are increasingly used to determine the bargaining re- 
lations between employers and employees. In this way, with- 
out formal amendment, the American constitutions are un- 
consciously amended by the police power through the change 
of public opinion regarding the rights and duties of labor. 
This change works its way into the constitutions, partly 
through the discretion of public authorities, and partly 
through the application of old principles of justice to new con- 
ditions. 
2 



;8 PRINCIPLES OF LABO|l LEGISLATION 

(2) Public Authorities 

Here the issue is between the amount of discretion, or 
power to enforce one's own opinion, allotted to the execu- 
tive legislative, and judicial branches of government. Shall 
the legislature or Congress use its sovereign power to the 
extreme limit of equalizing fortunes and givmg labor a high 
preference over capital, or shall it be restricted to narrower 
limits^ In other words, can the legislature, under whatever 
power of taxation, commerce, or police, put mto force its own 
notions of "general welfare" and "social expediency, or 
must it be limited to the notions held by the courts? ^ ^ 

In monarchical countries, or countries whose executives in- 
herit monarchical powers, executive discretion still remains to 
the monarch, or president, or the executive counal,^ after legis- 
lative powers have been taken away by Parhament ihis 
power of discretion is the executive's power to decide when and 
where a law appHes. and to issue rules, regulations, ordinances, 
or orders which have the effect of law, which are needed to en- 
force the law, or even are thought by the executive necessary 
to fill any gaps which Parhament has left in the scheme of 
laws. Indeed, in enforcing a law, every executive officer must 
exercise some discretion, which he does as his own opinion 
directs. Discretion is the power to act without mterference 
according to one's own opinions, or pohcy, or theory of things. 
It is not supposed to be capricious or changeable. It is power 
to adopt and follow a pohcy, not power to be arbitrary and 
unreasonable. Even a pohceman must make up his mind 
whether a man is drunk or not, before applying the law against 
pubhc intoxication. Policemen may differ in their opinions 
on this matter, even though the facts do not differ, and their 
differences are the little germs of what, in the case of a mayor, 
governor, president, or king, would be called executive pohcy, 
or executive discretion. 

Under the theory of our constitution, however, the execu- 
tive officers have no discretion to follow a pohcy of their own. 
The legislature is the pohcy-making branch of government. 
It has discretion; it can put its opinions into effect; it cai^ 



THE BASIS OF LABOR LAW 



t^ 



adopt a policy, because it is supposed to represent all inter- 
ests in society and to know all the facts. The effort is there- 
fore made in our country to limit the executive discretion as 
narrowly as possible, in order that it may be said that the 
executive merely enforces the law as he finds it. To do other- 
wise would be to delegate legislative power to an authority 
that is not legislative under the constitution. 

But with us, not even the legislatvu-e is the supreme legis- 
lative power. The written constitutions are the fundamental 
laws, enacted directly by the people themselves. Being laws, 
they also express a policy, based on the opinion of the people 
who adopted them. And their policy must prevail against 
the legislative discretion. The policy of the constitutions is 
extremely individualistic. It asserts inalienable and natural 
rights of individuals against all others and against the state 
itself. When a policy of the legislature set forth in a statute 
comes into conflict with this individualistic policy of the 
constitutions, some one must be called upon to decide which 
shall prevail. The supreme courts, at first w^th hesitatioh, 
but afterward with assurance, have made these decisions. If 
a statute of the legislature fixing the hours of labor conflicts 
with the constitution, the courts merely refuse to enforce it — 
they enforce the constitution itself. Thfey declare the law 
* ' unconstitutional . " ^ 

But there is a principle of our courts to the effect that a 
law is not unconstitutional if a Way can be found to sustain 
it. Hence, if there is an apparent conflict between the con- 
stitution and the attempt of the legislature to abridge private 
rights, and if the court cannot support the legislature under 
the other limited justifications of taxation, guardianship, 
proprietorship, eminent domain, or protection of person and 
property, it may see its way to support it under the elastic 
justification of the police powet*. Thus the police power in 
America may be looked upon as the courts' justification for 
gradually amending the constitution by interpretation so that it 
may conform to the new objects and new restrictions on pro{3- 



The 



1 Switzerland. 



*For history of laws declared unconstitutional see Moore, "Th( 
Siipireme Court and tJhconstitiitional Legislation," Cdlathbid Uni 
vwi'sity Studies in HUtbfyi Economics, and Public Laxt^, Vbl. LIV^ 1013, 
No. 2. 



■ ! 
i i 



,. i ; 



20 PRINCIPLES OF LABOR LEGISLATION 

erty which the legislature deems important. A similar justi- 
fication and gradual amending of the constitution takes place 
when the court permits Congress to extend the taxing power 
or the commerce power to the regulation of rates, services, 
wages, hours of labor, safety, health, and compensation for 
accidents. 

This distinction between discretion on the part of the legis- 
lature and interpretation on the part of the courts is a dis- 
tinction not so much between the several powers of govern- 
ment as between the functions peculiar to the several branches 
of government. It leads us to distinguish the public authori- 
ties who share in the exercise of the public powers. 

Government can interpret and exercise its powers only 
through individuals. Each of these individuals takes an oath 
appropriate to his office, agreeing to support the constitution, 
to execute the law, to maintain order. For the time being 
his acts are the acts of the state, provided he keeps within the 
authority granted to him. To the legislature is granted the 
authority of deciding on public policy for the future, and, in 
doing so, it exercises discretion. To the courts belongs the 
power of deciding particular cases as they arise, and in doing 
so they interpret the laws. The executive enforces the law. 
But, to a fourth and new branch of government, unrecognized 
in the original constitutions, which may be called the adminis- 
tration,! is coming to be assigned the function of investigation 
of those economic and social conditions upon which the several 
branches of government base their decisions. While these 
functions cannot be separated in practice, yet they stand out 
as characteristic of each branch of government. Execution, 
discretion, interpretation, and investigation are the four great 
divisions in the functions of officials, and the executive, the 
legislature, the judiciary and the administration are the four 
branches that are specialized for these functions. 

a. The Executive. The executive authorities are entitled to 
use violence if necessary, and to deprive individuals of life, 
liberty, and property without their consent. Private individ- 
uals may not even resist an officer of the law. The army, 



THE BASIS OF LABOR LAW 



21 



navy, and militia may be called upon by the governor or pres- 
ident in time of strike or riot. Sheriffs, marshals, their 
deputies and policemen, may arrest and imprison individuals 
in order to prevent violence and to execute the orders of the 
court in the administration of civil and criminal justice. They 
belong to the military or "police" force of the state, which, 
under our theory, is subordinate to the ci\'il authorities. The 
police force, as already stated, differs from the police power, 
in that the police power is the authorization, or justification, 
under which civil authorities are entitled to exercise discre- 
tion in enacting laws and issuing orders, while the police force 
is the agency which exercises coercion as directed by these 
laws and orders. 

While in law the military and police forces have no dis- 
cretion, but must follow orders, yet, in the urgency of im- 
mediate action, they must exercise discretion before their acts 
can be passed upon by the civil authorities. Only in case of 
war can executives legally set aside the superior authority of 
the courts, but war can be declared only by the legislature, a 
civil authority.* The arbitrary discretion of the executive is 
sought to be held in check by that greatest instrument of 
freedom, the writ of habeas corpus. By means of this writ the 
court, a civil authority, orders the executive, or military power, 
to bring out a prisoner for hearing and for release if wrongly 
imprisoned. If the executive refuses, then the civil authority 
ipso facto becomes subordinate to military force. In so far 
as the executives and the military and police authorities exer- 
cise discretion, their opinion of the rights and duties of em- 
ployer and employee is sometimes the deciding factor one 
way or the other in determining the relative power of the 
two in the wage bargain as affected by strikes, lockouts, pub- 
lic assembly, public speaking, agitation, arrest of leaders, 
protection of strike-breakers, picketing, the use of the streets, 
and otherwise. 

b. The Legislature. The legislature is the authority which, 
acting within limits, is entitled to exercise discretion in de- 



^Die Verwaltung. The term "administration" has been used by the 
Supreme Court in this sense, 224 U. S. 474 (191 J 230 U- S. 196, 274 
(1912)- 



* This has apparently been denied by the Supreme Court of West 
Virginia, which sustained the acts of a "military commission" in sen- 
tencing strikers to prison. State ex rcl. Mays v. Brown, 71 W. Va. 519, 
77 S. E. 243 (191 2); ex parte Jones, 71 W. Va. 567, 77 S. E. 1029 (1913). 



99 PRINCIPLES OP LABOR LEGISLATION 

ciding upon public policy and enacting laws to carry the 
policy into effect. It is the one branch of government where 
the representatives of conflicting opinions are entitled to ex- 
press their joint opinion in the form of law that shall be en- 
forced on all persons with or without their consent. Other 
branches of government are considered to be impartial and 
limited to the execution of the law as the legislature prescribes. 
But the legislature may be partisan in politics and partial 
between employers and employees. It is considered that, if 
partisans meet and discuss in an orderly way their points of 
antagonism, the outcome will be a compromise in which the 
arbitrary power of no individual or class will dominate others. 
Yet, in fear that the legislature may not act justly, and may 
override minorities or those not represented, the people have 
enacted the higher law known as the constitution, with its 
bill of rights and its limitations on the legislature. This leads 

to the judiciary. 

c. The Judiciary. Under our constitutional system the 
judicial branch holds a high and unique position. In order 
that it may be removed from the heat of partisanship and 
partiality it is made independent of the executive and legis- 
lative branches. In order that the federal system of a cen- 
tral government and forty-eight state governments, each su- 
preme in its own field, may operate in harmony, the federal 
court is made the final authority to determine how far the 
field of each extends. By the fourteenth amendment to the 
constitution, all persons bom or naturalized in this country 
enjoy a double citizenship — that of the United States and of 
the state wherein they reside. By this amendment the federal 
courts have authority to prevent any state from abridging 
the rights which the federal constitution and laws grant to 
them as citizens of the United States, and to prevent any 
state from depriving any person of life, Uberty, or property 
without due process of law. The federal courts interpret and 
apply treaties with foreign nations and protect the rights of 
aliens. Finally, since the acts of the federal Congress or ex- 
ecutive may conflict with the constitution, the federal court 
may declare them unconstitutional and hence refuse to apply 
them, in order to protect the constitution. 

In this many-sided jurisdiction over states, over Congress, 



THE BASIS OP LABOR LAW 



23 









over the executive, over inferior courts, and over private 
citizens, and in the interpretation of these many laws, the 
Supreme Court of the United States exercises authority not 
only judicial, but also, in fact, legislative and executive. So 
with the supreme courts of the states within their proper 
jurisdictions. When deciding between a law of the legisla- 
ture and the law of the constitution, they necessarily decide 
between the policy of the legislature and their own opinion, 
based on previous decisions, of the policy contained in the 
constitution. When nullifying an act of the executive they 
interpose their opinion of the law and the constitution against 
the executive's opinion. Yet they are but performing the 
judicial function of interpreting the laws and making their 
application to the facts of each particular case, as it arises. 
Their legislative and executive functions arise because they 
have authority to apply their interpretation to cases in which 
the acts of legislatures and executives are called in question, 
as well as cases where only private citizens are the litigants. 
In this way is established, as the court has said, "a govern- 
ment of laws and not of men.''^ 

But the courts, jUst as legislatures and executives, are com- 
posed of men. They, too, are guided by opinions, and their 
opinions change with change in experience and change in 
judges. The difference consists in the procedure, the stand- 
ards, and the safeguards by which the judges arrive at their 
opinions, compared with those which restrain the more hasty 
opinions of lawmakers and executives. It is merely "opin- 
ions," after all, rather than written constitutions, that pro- 
tect, enlarge, £lnd abridge rights and duties. 

d. The Administration. But opinions of individuals are so 
capricious, fluctuating, and uncertain, so liable to be bent by 
bias, passion, and interest, that our constitutional system of 
government imposes methods and principles designed to re- 
duce them to an orderly system based on reason. These 
methods are investigation or the accurate discovery of facts 
and conditions, and in more recent times the administrative 
branch of government has been devised with investigation as 
its main purpose. Investigation is so involved in all the 



^Marbury v. Madison, i Cranch 137, at p. 163 (1803). 



I 



24 



PRINCIPLES OF LABOR LEGISLATION 



THE BASIS OF LABOR LAW 



25 



topics of labor legislation that the treatment of administra- 
tion is reserved for the concluding chapter. 



(j) Principles 

The other essential to an orderly system of reason in place 
of capricious opinion is the principlqs, standards, or "maxims" 
that underlie due process of law./ Under the theory of our 
courts, the principles of law and justice are immutable and 
unchanging. Facts and conditions change, and these are re- 
vealed by investigation, but the principles remain the same, 
though their application changes when the facts change. The 
leading principles that concern yus are "public benefit" and 
"equal protection of the laws."-/^^ 

a. Public Benefit. The effect and purpose of the police 
power is to impose a duty on some individual which redounds 
to the benefit of other individuals. * In despotic or oligarchic 
governments these benefited individuals are likely to be the 
favorites and courtiers of the monarch or the privileged and 
aristocratic classes. In a democratic or republican govern- 
ment they are likely to be political partisans, monied interests, 
employers' organizations, trade unions, or other classes who 
get control of the legislature and enact laws merely for the 
benefit of their private interest at the expense of other private 
interests. But if a thing of this kind happens, then the legis- 
lature is doing the very thing which revolutions and written 
constitutions were designed to prevent when despots and 
aristocrats were the offenders. Hence it is that every act 
of the legislature must be tested by a standard which shall 
determine whether the persons or classes of persons to be 
benefited are so benefited merely because they have power in 
the legislature to impose burdens on others, or because the 
benefit to them is also a benefit to that body of the whole 
people which we call "the public." If the benefit goes only to 
private persons for their private benefit, then the legislation 
is unconstitutional, because it employs the sovereign power of 
government for private purposes. But if those persons who 



> See "The Police Power," p. 13 



are benefited are either the entire population or such a sig- 
nificant part of the population that their benefit is also a 
public benefit, then the powers of government are put to 
their proper use of performing a public purpose. ^ 

Thus we have a series of terms closely related or synony- 
mous, all of them implying public benefit, such as public utility, 
public interest, public use, public value, public service, pub- 
lic welfare, public purpose. These indicate the most funda- 
mental principle, standard, or maxim, which measures or limits 
the extent to which the legislature my go in exercising its 
police power. 

But public benefit is not something fixed and unchangeable. 
The police power particularly is that justification by which 
the definition of public benefit may be changed or enlarged 
as time goes on. In the final analysis this enlargement of the 
definition of public benefit is merely an enlargement of the 
court's opinion as to what constitutes a public purpose. But, 
behind the change in the court's opinion is the change in 
conditions and the change in public opinion. Among the 
changes in conditions which lead to changes in opinion are 
those industrial changes already mentioned, such as the change 
from free land to closed land, the changes in transportation 
and mobility of labor, the development of large-scale indus- 
try', all of them throwing large masses of labor together into 
active competition. The increasing congestion of population, 
whether in towns or factories, has brought a change of opinion 
as to the need of extending the police power in matters of 
health, safety, and morals. 

Accompanying these changes in outward conditions may be 
noted significant changes in public opinion and court opinion 
regarding labor. In the colonial or agricultural stage of in- 
dustry the man without property was looked upon as partly 
shiftless, partly vagabond, partly criminal, and the opinion of 
the time supported many kinds of coercive laws by which 
both adults and children might be captured or enslaved or 
otherwise compelled to work. In this way it was considered 
that propertyless laborers would be trained in the habits of 

^The term "public purpose" is usually limited to taxation and 
eminent domain, but in this book it is also applied to other powers, 
especially the police power. 



26 



PRINCIPLES OF LABOR LEGISLATION 



THE BASIS OF LABOR LAW 



27 



11 



industry and thrift by which they could rise to the position 
of proprietor and could share in the rights and civilization of 
their superiors. 

A citizenship stage followed, beginning in the decade of 
1820, when the propertyless man was granted the suffrage. 
This produced at once a revolutionary change in the atti- 
tude of labor toward itself, shown in the first series of strikes 
on a large scale for reduction of hours of labor with the demand 
for more leisure for the duties of citizenship as well as the 
demand for free schools, for the abolition of imprisonment 
for debt, of indentured service, and other remnants of the 
servile stage. 

Immediately following this period and the failure of ag- 
gressive methods, after the panic of 1837, came what may be 
called the humanitarian period. Labor, for the time being, 
lost its power of attack and became incapable of self-help. 
So the long period of unemployment, until the gold discoveries 
of 1849, produced a class of eminent men in sympathy with 
labor, and brought about the beginning of legislation abolish- 
ing imprisonment for debt, providing wage and homestead 
exemptions, free schools, protective tariffs against foreign 
pauper competition, and generally removing the opinions of 
servility, dissoluteness, and criminality theretofore held re- 
garding propertyless labor. This remarkable period cul- 
minated in the Civil War, which freed the slaves. It was 
accompanied by similar movements in Europe, and altogether 
was nothing less tlian a revolution in public opinion regard- 
ing labor. 1 

With the decade of the 'sixties began again an aggressive 
movement of labor, headed in Europe by the International 
Workingmen's Association, which later split into socialism, 
anarchism, and trade-unionism, and in the United States by 
the National Labor Union, which finally split into green- 
backism, socialism, and trade-unionism. This period, ex- 
tending into the twentieth century, may properly be char- 
acterized as a period of class struggle, in which new and 
enormous fortunes derived from industry were pitted against 
unprecedented organizations of labor in many deadly strug- 



gles, and in which legislatures responded to the demands of 
labor for legislation, and the courts responded to the demands 
of capital by declaring such laws "class legislation" and there- 
fore unconstitutional. 

This period, to a considerable extent, continues to the pres- 
.ent time, but the beginning of another, which may be called 
/the public benefit period of labor legislation, dates from 1898, 
when the Supreme Court decided the case of Holden v. Hardy. » 
Hitherto the police power was recognized mainly as an au- 
thority to enforce protective restrictions against producers 
in behalf of consumersrf/This decision affirmed the power to 
enforce such restrictions on employers and consumers in 
behalf of producers. Jn other words, whereas formerly, for 
the most part, the health of consumers, but not the health of 
producers, was a public benefit, now the health of the laborer 
as a producer is considered to be as much a public bojiefit as 
the health of the consimier of his product. If this be so, then 
the liberty of both the employer and the employee to make a 
labor contract may be restricted and regulated, if it is found 
that the contract is injurious to the laborer. The protection 
of labor becomes a public purpose. ^ 

/ In the Holden v. Hardy case the court also stated the prin- 
ciples on which the powers of government are enlarged as 
conditions change and new facts are brought to the attention 
of the court through investigation Ty' This court has not failed 
to recognize the fact that the law is, to a certain extent, a 
progressive science; that in some of the states methods of 
procedure which, at the time the constitution was adopted, 
were deemed essential to the protection and safety of the 
people, or to the liberty of the citizen, have been found 
to be no longer necessary; that restrictions which had for- 
merly been laid upon the conduct of individuals, or of classes 
of individuals, have proved detrimental to their interests, 
while, upon the other hand, certain other classes of persons 



1 See Chapters II, " Individual Bargaining," and III, "Collective Bar- 
gaining." 



^ 169 U. S. 366, 18 Sup. Ct. 383 (1898). The decision affirmed the con- 
stitutionality of legislation reducing the hours of labor of men who work 
in smelters and underground. 

' This was, of course, not the first time that this doctrine was as- 
serted. Indeed, it was implied whenever a court sustained a law pro- 
tecting labor. But it was the first broad statement by the highest 
court in such a way as to make it "the law of the land." 



28 



PRINCIPLES OF LABOR LEGISLATION 



(particularly those engaged in dangerous or unhealthful em- 
ployments) have been found to be in need of additional pro- 
tection. ... It is impossible to forecast the character or ex- 
tent of these changes; but in view of the fact that, from 
the day Magna Charta was signed to the present moment, 
amendments to the structure of the law have been made with 
increasing frequency, it is impossible to suppose that they will 
not continue, and the law be forced to adapt itself to new 
conditions of society, and particularly to the new relations 
between employers and employees, as they arise. "^ Two 
state courts have said, "While the principles of justice are 
immutable, changing conditions of society and the evolution 
of employment make a change in the application of principles 
absolutely necessary to an intelligent administration of 
government."^ 

Finally a justice of the Supreme Court, in 191 1, is able to 
identify a public benefit with public opinion regarding not 
only the health of a class of producers, but also regarding the 
welfare of any class of people, and to declare that the police 
power is shaped "by the prevailing morality or the strong and 
preponderant opinion" as to what is "greatly and immedi- 
ately necessary to the public welfare."^ 

b. Equal Protection of the fyiws. Another respect in which 
the case of /Holden v. Hardy is the headlight of a new period 
is found in( its opinion regarding the inequality of bargaining 
I power of employer and employee. The opinion declared that 
I a law, such as the one then before the court, limiting the work- 
ing hours of men, was not class legislation and therefore did 
not conflict with the constitution which guarantees to each 
individual the equal protection of the laws. The reason is, 

1 Holden v. Hardy, 169 U. S. 366, at pp. 385-387 (1898). 

* Ritchie i'. Wayman, 244 III., 509, 91 N. E. 695 (1910); quoted with 
approval from Washington r. Buchanan, 59 L. R. A. 342 (1902). 

' Noble Stite Bank y. Haskell, 219 U. S. 104, 31 Sup. Ct. 186 (191 1). 
Also contrary opinion in Ives v. South Buffalo R.R. Co., 201 N. Y. 271, 94 
N. E. 431 (191 1), at p. 448, where the highest court of New York said 
in part: "As to the cases of Noble State Bank r. Haskell and Assaria 
State Bank v. Dolly, we have only to say that if they go so far as to 
hold that any law, whatever its effect, may be upheld because by the 
'prevailing morality' or the 'strong and preponderant opinion' it is 
deemed 'to be greatly and immediately necessary to the public welfare,' 
we cannot recognize them as controlling of our construction of our own 
constitution." 



THE BASIS OF LABOR LAW 



29 



as declared by the court, that the employers and their laborers 
do not stand upon an equalityi^that "the proprietors lay down 
the rules and the operatives are practically constrained to 
obey them"; that "the latter are often induced by the fear 
of discharge to conform to regulations which their judgment, 
fairly exercised, would pronounce to be detrimental to their 
health and strength," and that, even though "both parties 
are of full age and competent to contract," yet the legislature 
may interfere "where the parties do not stand upon an 
equality, or where the public health demands that one party 

rthe contract shall be protected against himself." ^ 
In this opinion the court recognized, what had been dimly 
seen or implied from the beginning of labor legislation, that 
inequality of bargaining power is a justification under which 
the state may come to the protection of the weaker party to 
the bargain^f In earlier periods the courts had often held that 
capital and labor were equal, that laws favoring labor against 
capital were class legislation, and, even where certain courts 
held otherwise, the law books severely criticized them as 
yielding to the pressure of politics instead of bravely stand- 
ing by the constitution.^ But inequality of bargaining power 
has long been a ground for legislative and judicial protection 
of the weaker party, even though the courts found other 
grounds on which to base their opinions. It was early con- 
ceded as a justification of usury laws, protecting the weak 
debtor against the strong creditor; latterly of public utility 
laws, protecting the weak consumer against the powerful cor- 
poration; and now it only needs a recognition of facts to 
justify labor legislation protecting the weak wage-earner 
against the more powerful capitalist. Such legislation could 

^A similar opinion had been stated in 1892 by a state court (Peel 
Splint Coal Co. v. State, 36 W. Va. 802, 15 S. E. 1000 (1892), at p. 1009: 
"When a few persons are engaged in an extensive business and they 
have a multitude of customers or dependent employees and it appears 
that the business is of such a character that the parties do not deal 
upon an equal footing and that the many are at a disadvantage in 
their contractual relations with the few, the legislature may regulate 
these relations, with a view to prevent fraud, oppression, or undue ad- 
vantage." See also State v. Brown & Sharpe Manufacturing Co., 
18 R. I. 16, 25 Atl. 246 (1892); Avent Beattyville Coal Co. w. Common- 
wealth, 96 Ky. 218, 28 S. W. 502 (1894). 

2 Eddy, Law of Combinations , 1901, Vol. I, pp. 245-247, 277; Vol. II, 
p. 1023. 



« 



m 



H 



I 



30 PRINCIPLES OF LABOR LEGISLATION 

be held to deny equal protection of the laws only where the 
facts showed that both parties were actually equal. But 
where the parties afe unequal (and a public purpose is shown),* 
then the state which refuses to redress the inequality is 
actually denying to the weaker party the equal protection 

of the laws. 

it is by recognizing this inequality of bargaining power, 
coupled with a public purpose, that the courts pass over, in 
any particular case, from the theory of class legislation to the 
theory of reasonable classification. The two are identical in 
one respect; all classification is class legislation, but the kind 
of class legislation which the courts condemn is that which 
they consider to be * * unreasonable ' ' classification. Class legis- 
lation benefits or burdens one class against others where there 
is no real inequality or no public benefit. "Reasonable" 
classification benefits or burdens a class where there is real 
inequality to be overcome and a public benefit to be attained.^ 
That which is class legislation at one time may become rea- 
sonable classification at a later time, if the court perceives 
that what it once thought was equality is really inequaHty, 
and what it once thought was merely private benefit is also 
public benefit. 

I Thus the history of the constitutionality of labor legislation 
il the United States has been a history of the theory of classifi- 
cation^-'^he conflicting opinions of various courts on the ex- 
tent of the police power over private property are usually 
conflicting opinions on the equality or inequality of bargain- 
ing classes and on the public or private purpose subserved by 
the legislation. In proportion as certain classes of la- 
borers, such as women or mine-workers, are recognized by 
the courts as suffering an injury, and in proportion as the in- 
jured persons are deemed to be of importance to the public 
as well as unable to protect themselves, then legislation re- 
quiring the employer to remove the injury and prohibiting the 



THE BASIS OF LABOR LAW 



31 



» tft the case of Coppage v. Kansas, 236 U. S. i, 35 Sup. Ct. 240 (iQiS). 
tlie Supreme Court denied the application of the doctrine of inequahty 
of bargaining power, but this was a case where the purpose was to pro- 
tect trade unions against disruption by employers. What the court in 
effect decided was that a trade union performed a private and not a pub- 
lic puipose. See "The Law of Conspiracy," p. 114. 

" See also Freund, Police Power, pp. 626-755. 



laborer from even voluntarily consenting to the injury ceases 
to be overruled as "class legislation" and begins to be sus- 
tained as "reasonable classification." Even though the in- 
dividual liberty of both employer and employee to make so- 
called voluntary contracts is restricted by the law, yet each 
continues to have "equal protection of the laws" because 
each individual is treated equally with all other individuals 
of his own class. The bargaining power of the employee is 
increased while that of the employer is reduced, yet all em- 
ployers in a given class are treated alike and all employees 
in their class are similarly treated alike. 1 
/ This gradual transition from the time when labor was 
treated as equal to capital to the modem time when labor is 
given privileges superior to those of capital may be described 
as a transition from the law^ of master and servant to the law 
of employer and employee rj^rior to the decade of the 'thirties 
the laborer could be imprisoned for debt. In other words, his 
creditor had rights over his body, which w^as looked upon as 
property justly belonging to the creditor as was the laborer's 
other property sufficient to pay the debt. This reduced the 
laborer to a servile state while pretending that he was equal 
and free. No distinction was made between the fraudulent 
debtor and the unfortunate debtor. Now the laborer is not 
treated as a criminal unless proved to be so, and his creditor 
consequently has no remedy which reduces the laborer to the 
servile state. 

Next, in the decade of the 'forties, the law went further and 
the wage exemption laws prevented the creditor from taking 
even the minimum wages of the laborer in payment of a debt. 

TT ^'^^^^uP^i^^^P^^ "^^y ^^ ^^^ ^^ ^^® workmen's compensation laws. 
Under the former law of employers' liability the laborer carried all the 
expense mcurred by reason of the risk of accident. The employer had 
:ertam defenses by which he could throw the cost of accidents on the 
employee. (See "Rules of Employers' Liabihty," p. 358.) These de- 
fenses were held to be property rights, because they were valuable to 
the employer. But the legislature abolished these defenses and requires 
the employer to compensate all laborers for all disabling accidents The 
employers are thus compelled to pay the cost of insurance against all of 
these risks, where formeriy the laborer carried the insurance as best he 
coi^d. In this way the employer's increased cost of insurance may be 
said, so far as the law is concerned, to have increased the bargaining 
power of the employee and reduced the bargaining power of the employer 
or of the consumer to the same extent. 



1*1 



irs 



32 PRINCIPLES OF LABOR LEGISLATION 

Finally the thirteenth amendment to the constitution, by 
prohibiting involuntary servitude except for crime confinned 
the preceding privileges as well as the privilege of a laborer 
even to break his contract to labor without bemg forced to 
-specific performance." In these respects labor has been 
Kiven a preference over capital, in that while both the em- 
ployer and the employee can bring suits for damages on 
account of breaking a contract, the employer's suit is against 
the laborer whose small property is exempt from attachment, 
but the laborer's suit is against an employer whose busmess 
property as such has no exemption.* , 

Other laws are mentioned in the following chapters, showing 
the transition from the master-servant notion of law to the 
employer-employee notion. The master and servant law, 
while pretending to treat employer and employee alike re- 
tained marks of that servile status in which the laborer s body 
was the physical property of employer or creditor. But the 
law of employer and employee, as it develops, not only grad- 
ually removes those vestiges of past servitude, when the 
master could compel the servant to work, but also gives the 
latter a preference over capital in bargaining and a pnvilege 
to break contracts without effective penalty which the em- 
ployer does not possess. In other words, the natural in- 
equality of employer and employee reduces the latter to a 
servile state, reinforced by the law of master and servant, 
but the legislature, by giving preference to the weaker party, 
overcomes in part the inequalities of nature and secures a 
more real equality protected by the law of employer and 

employee.^ ,. . . . . ^ 

Thus it may be affirmed that the equahty of bargaining 

power toward which the law of employer and employee is 

directed is a principle so important for the public benefit that 

1 Of course, the bankrupt employer has the same exemptions as the 

^^^ THs distinction between the law of master and servant and^^ato^^ 
employer and employee is «ot technically correct The law b^^^ 

elude both under "master and servant ?V .• o fhl mor?indu<; 
broken away from these terms. In recent IciJislation of ^^e more^indus 
trial states the terms used are employer and ^"JPl°y^;^ .^his ^^^o^ 
with popular usage and serves to bnng out, "^^ ^ "^^^L^f/^^ wiS 
of the labor contract, as the underlymg purpose of equahty in the wage 

bargain. 



THE BASIS OF LABOR LAW 



33 



it becomes in itself a public purpose. Many decisions of the 
courts base the justification of the police power, not merely 
upon the protection of health, safety, and morals, but squarely 
upon strengthening the bargaining power of laborers. In sus- 
taining a law requiring wages to be paid in cash, the Supreme 
Court of Tennessee said: "The legislature evidently deemed 
the laborer at some disadvantage under existing laws and 
customs, and by this act undertook to ameliorate his condi- 
tion in some manner by enabling him, ... at his election and 
at a proper time, to demand and receive his unpaid wages in 
money rather than in something less valuable. Its tendency, 
though slight it may be, is to place the employer and employee 
upon equal ground in the matter of wages." « The court again 
approved the passage in Holden v. Hardy bearing on bargain- 
ing equality. 

Upon similar grounds was upheld as constitutional an 
Arkansas law forbidding coal operators "from using screens 
or other devices to reduce the amount of wages that would 
be due on the basis of weight of coal actually mined and 
accepted by the operator." The court said: "We are unable 
to say, in the light of the conditions shown in the public in- 
quiry referred to, and in the necessity for such laws, evinced 
in the enactments of the legislatures of various states, that 
this law had no reasonable relation to the protection of a large 
class of laborers in the receipt of their just dues and in the 
promotion of the harmonious relations of capital and labor 
engaged in a great industry in the state." ^ 

The court argued in a like tenor in upholding an Iowa 
statute denying eflfect to any contract restricting liability or 
the acceptance of any insurance benefits as a defense to per- 
sonal injury actions brought against railroads by their em- 
ployees. In dealing with the relation of employer and em- 
ployed the court held that "the legislature has necessarily a 
wide field of discretion in order that there may be suitable 
protection of health and safety, and that peace and good order 

Fnr^o"'''''!!^ V""^ ^°-- ^-.Harbison, 183 U. S. 13, 22 Sup. Ct. i (1901). 
^or cases declaring similar laws unconstitutional, see Freund. Police 
2TT' PP* ^^5, 306. ' 

rpnt^Af L^"" u ^,^k^"sas, 211 U. S. 539, at p. 550, 29 Sup. Ct. 206 (1909) . 
reprinted in Hall, Cases on Constitutional Law, 1913, p. 424. 



.>»t: 



34 



PRINCIPLES OF LABOR LEGISLATION 






may bo promoted through regulations designed to insure 
wholesome conditions of work and freedom from oppression. 
What differences as to the extent of this power may exist with 
respect to particular employments and how far that which 
may be authorized as to one department of activity may ap- 
pear to be arbitrary in another must be determined as cases 
are presented for decision. But it is well established that, 
so far as its regulations are valid, not being arbitrary or un- 
related to a proper purpose, the legislature undoubtedly may 
prevent them from being nullified by prohibiting contracts 
which, by modifications or waiver, would alter or impair the 
obligation imposed."^ The court here also quotes with ap- 
proval the passage from Holden v. Hardy relating to inequality 
and conflicting interest. 

As summarized by Ernst Freund: ^ "Our whole economic 
system is based upon a very wide liberty of dealing and con- 
tract, and it is deemed perfectly legitimate to use liberty for 
the purpose of securing special advantage over others. The 
resulting disparity of conditions is not, on the whole, regarded 
as inconsistent with the welfare of society. Yet a different 
view seems to be taken of this liberty of dealing, where 
economic superiority is used to dictate oppressive terms, or 
where a degree of economic power is aimed at that is liable 
to result in such oppression. The theory of legislative inter- 
ference seems to be in some cases that oppression in itself, 
like fraud, is immoral and wrong either against the individ- 
ual affected thereby or against the public at large; in other 
cases, that the excessive dependence of whole classes of the 
community threatens, though perhaps only remotely, the 
social fabric with grave disturbance or ultimate subversion 
and ruin." 



1 Chicago, Burlington & Quincy R. Co. v. McGuire, 219 U. S. 549, 
at p. 570, 31 Sup. Ct. 259 (191 1 ), reprinted in Hall, Cases on Constitutional 
Law, p. 518. - Police Power, p. 285. 



CHAPTER II 
INDIVIDUAL BARGAINING 

In the broadest sense of the term a debt is that which is 
due from one person to another, whether money, goods or 
services. 1 The laborer as debtor may, therefore, be looked 
upon as owing either labor or money to another. But modern 
law does not force a laborer to work out his debt. It con- 
verts a labor debt into a money debt, or "damages," and en- 
forces payment of the latter. Furthermore, under "exemp- 
tion laws, the law does not always enforce even the total 
payment of a money debt. 

.1.^2^'' ''^^^'" '''^''' ^^^ ^^^^^^^ ^^ ^ ^^^^itor to the extent 
that the employer owes him money for his labor. Here too 
modem legislation gives him certain privileges or protecJtion,' 
not usually given to other creditors. 

It is in this twofold relation of debtor and creditor that 
we trace the history of labor law from the servile stage, through 
the stage of master and servant, to the modern stage of 
employer and employee. 



I. The Laborer as Debtor 

J!jn ^'^"y. the legal relations of the laborer as debtor 
^eshall begin with the employment of labor in its elementary 
fonn of slavery, where all of the rights were on the side of 
the owner and all the obligations on that of the laborer. 

are Lnwn ^ '"''^^•"S °' contemporary stage of serfdom. 
are know n as a penod of status. The laborer is bom to the 

'Kimpton V. Bronson, 45 Barb. 625 (1866). 



i 



36 PRINCIPLES OP LABOR LEGISLATION 

position and does not enter it by agreement or contract. But 
status often merges into contract, or the fiction of a contract, 
and we may therefore speak of a servility stage, or a stage 
of servile contracts, preceding that of free contracts. Here 
would be classified slavery, serfdom, and peonage. These 
conditions of labor, even if based on contract, may be so 
evidently the outcome of coercion that they may rightly be 
considered as belonging to a pre-contract or servile stage. 

A second stage, which we may designate as that of master 
and servant, emerges gradually from the more liberal forms of 
servile contracts, although retaining vestiges of servile rela- 
tions. Some of the contracts of this stage, especially the 
seaman's contract, have continued down to the present day, 
while others, such as apprenticeship, indentured service, and 
contract labor, can with difficulty be distinguished from those 
of the servile stage. The ameliorating character of both the 
servile and master stage is that of paternalism, and both of 
them are closely connected with the institution of the family, 
in which the wife and children occupy a position of status, 
afterward modified by contract, express or implied. 

^ Modem labor legislation, as understood in this book, be- 
gins with a conscious effort on the part of the legislature to 
remove both the servile and paternal vestiges of the master 
and servant stage and to substitute a stage of real equality, 
as far as possible. This we designate as the employer and 
employee stage. 

(j) Servile Labor 

a. Slavery. The worker under primitive slavery is re- 
garded as the property of his master. In Roman law a 
slave was regarded not as a person, but as a thing. 1 In 1776 
Mr. Justice Chase of Maryland said: "Negroes are property, 
and no more members of the state than cattle." ^ 

In England, in 1772, it was held by the court that slavery 
could not exist in the mother country. The slave trade was 
abolished by statute there in 1807, and in the colonies in 1833. 

* Sohm, Institutes of Roman Law, tr. Ledlie, 1901, p. 171. 
' Wilson, History of the Rise and Fall of the Slave Power in America, 
n. d., Vol. I, p. 15. 



INDIVIDUAL BARGAINING 



37 



The example of Great Britain in regard to her colonies was 
gradually followed by other European states, by France in 
1848, Portugal in 1858, Holland in 1863. Spanish-American 
states abolished slavery after securing independence. In the 
United States the slaves were freed in 1865 by the thirteenth 
amendment to the federal constitution, as an outcome of the 
Civil War, and Brazil, the South American state which re- 
tained slavery longest, abolished it by decree of the Chambers 
in 1888. 

b. Serfdom. Slavery aims at the subjection of the whole 
rnan. Another degree of unfreedom, namely, serfdom or 
villeinage, does not attempt to cover the entire range of 
human life. It is concerned only with certain relations, gen- 
erally economic in character. Compulsory labor— compul- 
sion as to the kind of service and the time and place where it 
IS to be rendered— is the essential note of serfdom or villeinage. 
A serf was bound to the land and bought and sold with it, 
like ^cattle. ^ But he might seajire freedom by "commuta- 
tion," that is, by paying to the lord or master who had the 
title to the soil a sum of money or an annual payment pre- 
sumably equivalent to the value of the service which he 
rendered his lord. He substituted a money debt for a labor 
debt— in other words, he bought his freedom. Serfdom ap- 
pears as a corollary of feudaUsm. It grew up as a conse- 
quence of customary subjection in an agricultural system and 
melted away with the advent of the industrial age. 

c. Peonage. Peonage has been defined as a "status or 
condition of compulsory service based upon the indebtedness 
of the peon to the master." ^ The basic fact is indebtedness. 
In Mexico, after the Spanish conquest, slaves were used in 
mines and on roads, while serfs or peons were used for agri- 
culture The condition of the latter, though differing Httle 
trom slavery, was theoretically more humane and right- 
respecting. Together with peonage a system of large estates 
grew up. The peons got food and clothing from their mas- 
1 'I4 Mexican peons are descendants of natives en- 

slaved by the Spaniards, and are often merely bondsmen.^ 

I Clyatt i; U. S., 197 U. S. 207, 25 Sup. Ct. 429 (1904). 

a U"\^^'l?^''^^ Bureau of Labor, Bulletin No. 38, 1902, p. 2^. 
■ W. li. Carson, Memco, 1914, p. 185. ^ * ^ * f o 



38 PRINCIPLES OF LABOR LEGISLATION 

Their wages are low and they are compelled to deal at the 
store of the estate. They are always kept in debt, and until 
the Mexican constitution of 19 17 abolished involuntary servi- 
tude except as a punishment for crime, an Indian workman 
owing his employer became the property of the latter. ^ Some- 
times peons are induced to contract for work to be done in 
tropical parts, and here they get into debt at once and are 
prevented by armed guards from escaping.^ 

In the United States, after the abolition of slavery by 
the thirteenth amendment in 1S65 the proprietors, being de- 
prived of their property right in the services of the slave, 
sought in some cases to effect the same purpose by indirect 
means, such as enforcing indebtedness and compelling the 
working out of the debt. These subterfuges gave added im- 
petus to the agitation which led to the adoption, two and a 
half years later, of the fourteenth amendment, which created 
a citizenship of the United States in addition to that of the 
state, and prohibited any state from depriving a citizen of 
the United States of "life, liberty, or property ^4thout due 
process of law," or denying "to any person within its juris- 
diction the equal protection of the laws."^ 

In 1875 the United States Congress passed statutes which 
have been thought to enforce the meaning of the thirteenth 
amendment. That they do not entirely accomplish this is 
pointed out by the Immigration Commission of 191 1.-* One 
statute provides heavy fines for those who "conspire to in- 
jure, oppress, threaten, or intimidate any citizen in the free 
exercise or enjoyment of any right or privilege secured him 
by the constitution of the United States";^ and another for 
"every person who kidnaps or carries away any other person, 
with the intent that such person be sold into involuntary 
servitude, or held as a slave. "« But, as the Immigration 
Commission shows, "if a person simply places or holds another 
in slavery, it is impossible for the federal courts to impose 

^ W. E. Carson, Mexico, 1914, pp. 188, 189. 

2 Ibid., p. 191. See also Ely, Property and Contract, 1914, Ch. X. 
» Constitution of the United States, Fourteenth Amendment. Sec. i 
m force July 28, 1868. 

* Immigration Commission, Abstracts of Reports, 191 1, Vol. II, p. 446 

* United States Revised Statutes, 1898, Sec. 5508. 

* Ibid.^ Sec. 5525. 



INDIVIDUAL BARGAINING 



39 



penalties under statutes at present in vogue (191 1), tmless 
the placing or holding be for the purpose of forcing the settle- 
ment of a debt, no matter how great may be the abuses per- 
petrated upon the person held. In the Clyatt case the 
Supreme Court decided unmistakably that the peonage 
statute (R. S. 5526) referred only to cases where the return 
or arrest or holding has been for the purpose of paying a 
debt."^ 

The chief origins of the enforced indebtedness upon which 
peonage rests are advances made by the employer to the 
laborer, misrepresentations made to laborers by unscrupulous 
employment agents, the payment by an employer of fines 
and costs in cases of misdemeanor, especially violations of 
vagrancy laws, and the operation of contract labor laws. 
Advances to laborers might include payments for transporta- 
tion, working equipment of various sorts, and any payment 
in kind, such as food, clothing, or housing, accomplished 
through company stores and land ownership. An example 
is found in the state of Maine, where advances are made to 
laborers sent out by employment agents who "misrepresent 
conditions in the woods, and frequently tell the laborers that 
the camps will be but a few miles from some tov/n where they 
can go from time to time for recreation and enjoyment. 
Arriving at the outskirts of civilization, the laborers are 
driven in wagons a short distance into the forests, and then V 
have to walk sometimes sixty or seventy miles into the in- 
terior, the roads being impassable for vehicles. The men wall 
be kept in the heart of the forest for months throughout the 
winter, Hving in the most rugged fashion and with no recrea- 
tion whatever."^ Similar practices of deceit were exercised 
by the agencies which send labor from New York to the 
South. 

Abuses of the vagrancy laws were found to occur in the 
South, involving both negro and white laborers.^ In Florida, 
for instance, "common pipers and fiddlers, common railers 
and brawlers" may be arrested under the vagrancy law of 

» Immigration Commission, Abstracts of Reports, Vol. II, p. 446. See 
also Clyatt v. U. S., 197 U. S. 207, 25 Sup. Ct. 429 (1904). 
2 Ibid., p. 447. y 

^ United States Departnient of Justice, Amiual Report of the Attorney- 
General, 1907, Exhibit 17, pp. 207-213. 



T -l-^fmaimrrWitaMB 



40 PRINCIPLES OF LABOR LEGISLATION 

190S, and fined not more than $250 or imprisoned not more 
than SIX months. Other states of the South make it quite 
easy for arrests to be made under these statutes. The victim 
IS usually a negro who, for a trivial ofTense, or no offense at 
all except bemg unemployed, will be arrested and charged 
with vagrancy. He gets little consideration from the local 
justices, and his fines are so high that he is unable to pay them 
An employer appears and advances the fine on the condition 
that the laborer will work out his debt. When the debt is 
worked out, and the negro is again unemployed, he will per- 
haps, be rearrestcxi on similar charges, and in such manner 
becomes virtually a peon. Occasionally a victim is not al- 
lowed to pay the fine when he has the money; he will be 
impnsoned and word sent to a planter, who comes in and 
pays his fine and then takes possession of the unfortunate 
cnmmal, who is obhgcd to work off his debt. In most cases 
this IS as hopeful a proceeding as borrowing from a mediaeval 
usurer for at the end of months of toil the laborer may find 
himself as deeply in debt as ever.i 

Although the Immigration Commission reported that in 
every state except Connecticut and Oklahoma there had 
occurred sporadic cases which, if supported by legal evidence 
would constitute peonage as the Supreme Court has defined 
It, nevertheless no general system of peonage, and no senti- 
ment supporting it, were found. In the South, where such 
practices were most frequent, prosecution by United States 
district attorneys was vigorous and usually successful.^ 

(2) From Master and Servant to Employer and Employee 

In the master and servant stage we have the beginnings 
ot the contract. In some cases the contract is very elementary 
m form, while m others it approximates closely the free labor 
contract. It is the first expression of the idea of equality 
between the laborer and his employer. The master was at 
liberty to hire whomsoever he wished, and, on the other 

andAf^; Vr W '5^t7'^"^^^ ^" *^^ ^"^^^ S^^^^'" Nineteenth Century 
and After, Vol. LXII, 1907, pp. 312, 313. ^ 

Immigration Commission, Abstracts of Reports, Vol. II, p. 445. 



INDIVIDUAL BARGAINING 41 

hand, the servant could work for any master he chose. The 
master was not free to discharge his servant during the term 
of the contract, nor the servant free to quit his master and 
to work for another. The laborer was to serve the master 
faithfully, keep his secrets, obey his lawful commands, and 
guard his interests. On the other hand, the master was to 
give his servant a living, to protect him and look after his 
welfare. 

a. Indentured Service. The slave, the serf, and the peon 
perform their labor under a fixed status, and the individual 
has little or nothing to say about it. The indentured servant 
had in some particulars the right of a ser^^ant in making a 
contract, and in other respects he was little more than a slave, 
except that his chances for ultimate freedom were more real! 
Indentured labor is peculiar to new countries where labor is 
scarce, and where opportunity for individual enterprise is 
great. To the American colonies people were shipped from 
the old worid to supply the need for young, healthy, energetic 
laborers for the development of the new. Children were 
sometimes shipped under the Elizabethan statute of appren- 
tices. ^ White indentured service is mentioned in laws of all 
the thirteen colonies.^ The dates 1619 to 1819 may be taken 
as mdicating roughly the beginning and end of the system. 
Competition with slavery destroyed it in the South before the 
end of the eighteenth century, but it continued to exist in 
the northern states into the nineteenth century. White ser- 
vitude was hampered by too many considerations in favor of 
the laborer; above all, the white servant's labor belonged to 
his master only for a term of years, after which he was as free 
as any one else, while the slave's services were property during 
the term of his life. 

6. Apprenticeship. Apprenticeship proper differs from in- 
dentured ser\4ce in that the master obligates himself to teach 
the apprentice a trade. If this obHgation does not appear 
m the contract, or is not enforced, the apprentice becomes in 
fact an indentured servant.' Thus many who came to 
America under what purported to be apprenticeship contracts 

!5Eliz..C.3and4Ci563). 

1 A^l ' ^^"^ ^f Freedom and Bondage in the United States, i8s8 Ch VI 

•Abbott, Women in Industry, 19 10, p. 331. 



(} 



f 



42 PRINCIPLES OF LABOR LEGISLATION 

were in reality indentured servants. The two merged into 
each other in another direction, in that an apprentice could be 
bound for seven years to learn a trade which could be learned 
as well in three. Four years' enforcement of such a contract 
would be really indentured service and only three years' 
would be true apprenticeship. ^ 

c. Ccnitract Labor. Midway between indentured service on 
one hand and the padrone system on the other, is contract 
labor. This form of labor, although apparently built on free- 
dom of contract, results in compulsory service or in peonaee 
practices. It is the kind of labor contract whose perform- 
ance can be enforced at law, and has been quite common 
where large numbers of natives of backward races have been 
«np oyed, as in the Hawaiian Islands, the PhiHppines, the 
West Indies, and in South Africa, where Chinese coolies were 
employed in the mines. 

In many respects contract labor closely resembles peonage 
as we have previously suggested, for it places the laborer in 
the position of a debtor owing services, yet there is a differ- 
ence between the two. Peonage involves continuous or in- 
definite service, as long as a balance of debt continues, which 
may be permanent. But contract labor pertains to a term 
of years only, after which the laborer cannot be compelled to 
work. Furthermore, should the laborer renew his contract 
because of economic pressure, still it is only for another term 
ot years. Contract labor results in ser\4tude for a definite 
period only, while it leaves the way open to freedom. It is 
possible, however, that abuses of the system may lead very 
easily to a state almost as bad as peonage, and it is this pos- 
sibility that has made contract labor unpopular in freedom- 
loving countnes and has led to legislation aiming at its re- 
striction and abolition. 

In the Hawaiian Islands a condition of contract labor 
existed for fifty years. In order to solve the problem raised 
by the scarcity of labor combined with the opportunity for 
industnal development, the employing class got a law enacted 
in 1850 by which laborers over twenty years of age could 

A^' ^ chapter on governmental regulation of apprentices in T M 
fe^tT'sl^rsr^^i:!^^^^^^ ^--^' J^^- Hopkins' Um: 



INDIVIDUAL BARGAINING 



43 



contract themselves to service for not more than five years. 
Refusal to work on the part of such a person was punished 
by imprisonment with hard labor. The man who tried to 
escape and was caught could be bound to double the original 
term of service. A later amendment added to the punish- 
ment for a second desertion three months' hard labor for the 
state. ^ This condition of contract labor was abolished in 
1900 by a clause in the organic act settling the conditions of 
annexation to the United States. 

While the performance of labor cannot be compelled by 
direct means, except where life and property are endangered, 
or public necessity and convenience demand it, yet indirect 
devices are invented to effect the same thing. Statutes which 
deal with "employers' advances" make it a misdemeanor for 
the employee to fail in the performance of his contract to 
work off a debt. As imprisonment for debt has been pro- 
hibited by law, the only means by which these contract labor 
laws can be made effective is to couch them in such terms as 
to make the laborer breaking his contract appear to be guilty 
of getting money or provisions under false pretenses. Intent 
to defraud must be shown, since a mere breach of the labor 
contract is not a crime. ^ 

The law of Alabama provides that "the refusal of any per- 
son who enters into such contract to perform such act or ser- 
vice, or refund such money, or pay for such property without 
just cause, shall be prima facie evidence of the intent to injure 
his employer, or to defraud him." ^ The statute of Maine, 
enacted in 1907.'* treating of contract labor, does not state that 
failure to perform the debt is prima facie evidence of intent to 
defraud, but judicial interpretation has had the same result.^ 

Prosecutions under such statutes, however, have been in- 
validated by a sweeping decision of the United States Supreme 
Court in a leading case.® Here the court stated: "The fact 



^ Katherine Coman, "Contract Labor in the Hawaiian Islands," 
American Economic Association Publications, 3d Series, Vol. IV, 1903, 

pp. 492-493, 531. , , 

2 Ex parte Riley, 94 Ala. 82, 10 So. 528 (1891). 
' Alabama, Code 1896, Sec. 4730, as amended 1903 and 1907. 
* Maine, Laws 1907, C. 7. 

' Immigration Commission, Abstracts of Reports, Vol. II, p. 448. 
" Bailey v. Alabama, 219 U. S. 219, at p. 242, 31 Sup. Ct. 145 (1910). 



^ 



44 PRINCIPLES OP LABOR LEGISLATION 

that the debtor contracted to perform the labor which is 
sought to be compelled does not withdraw the attempted en- 
forcement from the condemnation of the statute (prohibiting 
peonage). The full intent of the constitutional provision 
could be defeated with obvious facility if, through the guise 
of contracts under which advances had been made, debtors 
could be held to compulsory ser\'ice. It is the compulsion of 
the service that the statute inhibits, for when that occurs the 
condition of servitude is created, which would be not less 
involuntary because of the original agreement to work out 
the indebtedness. The contract exposes the debtor to liability 
for the loss due to the breach, but not to enforced labor. 
The act of Congress (Act of 1875) deprives of effect all legis- 
lative measures of any state through which, directly or in- 
directly, the prohibited thing, to wit. compulsory service to 
secure the payment of a debt, may be established or main- 
tained." This decision deUvered in 1910 invalidated laws of 
like nature in other states, ^ for the court obser\^ed: "No 
question of a sectional character is presented and we may 
view the legislation in the same manner as if it had been 
enacted in New York or Idaho. Opportunities for coercion 
and oppression in varying circimistances exist in all parts of 
the union, and the citizens of all these states are interested 
m the maintenance of the constitutional guarantees the con- 
sideration of which is here involved." 2 

Until very recently seamen have generally stood on a dif- 
ferent footing from other employees, for with them enforced 
contracts were permitted and the law as to involuntary servi- 
tude has not been applicable. In the case of Robertson v. 
Baldwin' the court stated: "Seamen are treated by Congress 
as well as by the Parliament of Great Britain as deficient in 
that full and intelligent responsibility for their acts which is 
accredited to ordinary adults, and as needing the protection of 
the law in the same sense in which minors and wards are en- 
titled to the protection of their parents and guardians. ' ' How- 

^Arkansas Florida, Georgia, Louisiana, Michigan, Minnesota New 
S^rf'^'^'Q^T ^4^^^^^' North Dakota, South Caro ina anTvlrgi^^ 
See United States Bureau of Labor Statistics, Btdletin No 148 '^Lahor 

^ T!6^6rX ^!^.:ilP ^^' annual'supplementstof^is!-^'^^: 

3 ^i^'uV' ^^^^i"^^' 219 U. S. 219, at p. 231. 31 Sup. Ct. 145 (loio) 
3 Robertson v. Baldwin, 165 U. S. 287, 17 Sup. Ct. 326 (1897). ^^ 



INDIVIDUAL BARGAINING 



45 



ever, since the date of that case the law of the United States 
affecting seamen has been changed and more freedom has been 
granted. A law^ of the 63d Congress abolishes arrest and 
imprisonment as a penalty for desertion. It goes so far as 
to stipulate that it shall be unlawful in any case to pay any 
seaman wages in advance of the time when he has actually 
earned the same, or to pay any person for the shipment of 
seamen when payment is deducted or to be deducted from 
seamen's wages. This is a clear effort to prevent the obliga- 
tion of indebtedness on which involuntary servitude is based. 
The law goes further and provides that for quitting the 
vessel without leave after her arrival at the port of her de- 
livery and before she is placed in security a seaman forfeits 
from his wages not more than one month's pay. This ap- 
proaches the free contract perhaps as far as the conditions of 
seafaring will permit. Congress regulates the nature of the 
contract, the term of service, the payment and assignment 
of wages, advance payments and credits, the regulation of 
sailors' lodging-houses, of shipping-masters, quarters on board 
ship, rations, and many other details. 

Railroad employees also come within the power of Con- 
gress, and it was a federal court which, while reiterating the 
general right of employees to quit work, suggested by way of 
dicta that "his quitting would not be of right and he would 
be liable for any danger resulting from a breach of his agree- 
ment and perhaps in some cases subject to criminal prosecu- 
tion for loss of life and limb, by passengers or others, directly 
resulting from his abandoning his post at a time when care 
and watchfulness were required upon his part in the dis- 
charge of a duty he had undertaken to perform." 2 Laws on 
this subject, excepting that of Connecticut, connect the cessa- 
tion of work with combinations and strikes,^ and forbid en- 
gineers and railroad employees to abandon locomotives under 

'United States Laws 1914-1915, C. 153; Revised Statutes, Sees. 
4529, 4530, 4596, 4610, 4611. Title: An act to promote the welfare of 
Amencan seamen in the merchant marine of the United States; to abolish 
arrest and impnsonment as a penalty for desertion, and to secure the 
safe?^^^°" *^^^^ provisions in relation thereto ; and to promote 

2 Arthur V. Oakes, 11 C. C. A. 209, 63 Fed. 310 (1894). 
Delaware, Ilhnois, Kansas, Maine, Minnesota, New Tersev Penn- 
sylvania. *^ ■'* 



' 



46 PRINCIPLES OF LABOR LEGISLATION 

circumstances of this nature, under penalty of fine and im- 
prisonment. 

d. Padrone System. The padrone system is one step re- 
moved from contract labor. Those who work under this 
system permit a leader, the padrone, to make their contracts 
yet the agreement is not enforceable at law. It is enforced 
only by their own necessities. The system started first with 
Ita lan laborers. The padrone brought over laborers from 
Italy, advancing the cost of their transportation, and hired 
them out to a contractor. He rented to them the shanties 
in which they lived while at work, and sold them supplies of 
rood. ^^ 

Italian laborers formerly made contracts with their padrone 
to serve him for one to three years, and occasionally for a 
k^nger penod.' The report of the Immigration Investigating 
Commission of 1895 shows that ItaHans and other foreigners 
had bcH)n imported ''by the cargo" into the Michigan iron- 
mines and worked on the padrone system in the early 'nine- 
ties. This was probably the time when the padroni were 
the most numerous and flourishing. 

Formal agreements among the laborers and the padroni are 
being discontinued, and for this there are perhaps three rea- 
sons. First, because the alien contract labor laws make their 
agreements not only unenforceable at law, but actually punish- 
able^ ir discovered by the government. Secondly, spontane- 
ous immigration from Italy has now become so great that it 
is not worth the padrone's while to risk a conviction under 
tlie contract labor laws, so that he is now merely a middle- 
man. Thirdly, there is the condition of dependence on one 
side and assistance on the other. The padrone does not es- 
tablish his control over a man, strictly speaking, either by 
force or fraud . Dr. Rossi calls the padrone system ' ' the forced 
tnbute which the newly arrived pays to those who are ac- 
quainted with the ways and language of the country."^ The 
system is founded on an inequality more deeply rooted than 
the usual inequality between the employer and the laborer. 
The races which work under this method are ignorant and 

J Industrial Commission, Report, Vol. XV, 1901, pp. 430-412 
"Immigration Investigating Commission, Report, i8qs, p. 26* 
•Industrial Commission, Report, Vol XV., 1901, p. 4^2. 



INDIVIDUAL BARGAINING 



47 



accustomed to be commanded, and it is on their dependence 
and lack of knowledge that the power of the padrone rests. 
Seen from the standpoint of the immigrant, a remedy is to 
be found not so much in legal rights, as in better education, 
American habits of thought, efficient employment bureaus, 
and more adequate administration of existing laws. 

e. Imprisonment for Debt. Not only as a debtor-laborer, 
but also as a debtor-consumer, the laborer receives considera- 
tion. Imprisonment for debt originally had no particular 
bearing on the labor contract or its history. The fundamental 
idea in the ancient German imprisonment for debt is the in- 
direct compulsion to pay. The debtor was to be encouraged 
to pay what he owed by being made uncomfortable until he 
did so. Compulsion to work had given place to compulsion 

to pay.* 

The abolition of imprisonment for debt was one of the 
issues raised by the early workingmen's parties in 1827. 
Kentucky, the first state to abolish imprisonment for debt, 
had already done so in 182 1. New York followed ten years 
later, and a series of legislative and constitutional provisions 
followed at intervals throughout the countr>^ Inability to 
pay one's debts, if not accompanied by embezzlement or other 
fraudulent conduct, is now no longer a reason for imprison- 
ment in civilized countries.^ 

/. Wage Exemption. FoUov/ing the abolition of imprison- 
ment for debt is the wage exemption legislation which took 
on large proportions in the United States in the 'forties. At 
the present time every state in the union has legislation 
exempting wages from attachment and execution for debt. 
In other words, the authority given to the sheriff or other 
administrative officer to seize from the property of the de- 
fendant (debtor) a sufficient amount to satisfy the judgment 
in favor of the creditor, is invalid when applied to wages 
under the exempt amount. The persons covered by these 
laws are diflierently specified in different states. Several pro- 
vide for exemption of **all laborers, mechanics, and day labor- 



»Th. Niemeyer, "Schuldhaft," Handworlerbuch der Staatsvnssen- 

schaften, Vol. V, 191 1, p. 593. 

* An important discussion of existing imprisonment for debt in Eng- 
land is found in E. A. Parry, The Law and the Poor. 



48 



PRINCIPLES OF LABOR LEGISLATION 






ers," as in Georgia; "residents of the statP " oc ; tj ,. 
resident debtor," as in Iowa- all "h^, u :^ ..*" ^^''^°- 

diana; "judgnient debtor." as' in New vtk T'h ^M" ^ 
support themselves pnH fL, / .^^^w York, and "all who 

hands," asrwL^n'sin '""''" '^ ^'^^ '^"^^ °f "^eir 

to'ltt"!? rSrTxf 1,^'"" """^-'^^^ ^-- «^-te 
days', while sSloth^l w '^^^^ '^'^S'^^' "'^^^s thirty 

due as exe^^S'rstrrXeTier'^c^r^^^ 

District of Cd^tri^he usualTrio^''", ''°°' " '" ^^^ 
so far as the time is soecified l?l.r^u °^ '"''^P^'°"^- in 

ceding attach„,ent. %nfl JV2t tttThT'^ ''% 
of the laws is to nrnf^nf +t,« • • ^^ ^"^ purport 

ingman who has nothint to h"""""^"" '^™'"^' °^ ^^'^ ^^^l^" 

Wage exen^pt o^Splfes not onf "^°" '''"P' '''^ ^^S^' 

taehment, but'also again galishnienT" Tr*^''"" °^ "*" 
ing by which the nlai^tjff • S^™'S"™ent.' This is a proceed- 

ani eWs1^t?r ^«r - ---^^^^^^^^^^ ri.hts 

into court some third oartv (J.rL ^ ^^J^"^^"^ by calling 

^. liomestead Flxemuirm An a • wages, 

vided thpt ihc '''^^^^^^- AU Amencan states have nro- 

toolfofre'starorprlS"^^^^^^^^^^ ^ ^ ' '^ 

tion. Alonjr with tho I ? ' . ^^ exempt from execu- 

homesteadlxCir tK^^ r rj" -^"^ *^ ,«^ 
intact the familv iinit ,V = ". '°e'«''^"on is designed to keep 

and to encXeTdobtr4?Cr*'^""^^''^^'"^^"^^^ 
last term to trv aLv, h '^as been reduced to the 

laborers alot.^'^utX'an^S:' t'mor tT "°* ^°^ 
:^:-be_a householder or thVh^Jof a^^^i^^^^errg^^ 

While a garnishment proceedine accomn^kh„?,^' '901-1914. p. 978. 
attachment or execution, it is "^ noTnil^'V. ' '*™* '^'^^ *^ ^" 
judicial proceedine bv which a r,.™ • ? * ■ ^^ °" Property, but a 

» See fiark. Ib&X ^^^.'^d ^^S't^™"' '^ obtained/t" 



INDIVIDUAL BARGAINING 49 

the exemption, but in a few states any person may be entitled 
to the exemption. The limitations on the homestead exemp- 
tion are m both acreage and value. Rural homesteads may 
vary m acres from forty to 100, and city homesteads from one 
ot to one acre (five acres in one state). Maximum monetary 
limits are $500 to $5,000. 

In 1848 English statutes provided only that tools and 
actual necessaries of judgment debtors were not to be seized 
in execution. In 1883 a statute carried the exemption a little 
further, so as to include "the tools (if any) of his trade and 
the necessary wearing -apparel and bedding of himself his 
A f;"^^?hildren, to a value, inclusive of tools and apparel 
and bedding, not exceeding twenty pounds ($100) in the 
whole^ ' These provisions have paraUels in most of the 
British colonies, and the exempted property amounts to 
about the same. Nowhere, however, is the exemption as 
hberal as in the United States. Homestead exemptions are 
peculiar to the United States, but the tools of a debtors 
countri^* ^'"^ exempted in most English-speaking 

h Assignment of Wages. Assignment of wages grows out 
of the legal act of transferring or making over to another of 
the whole or part of any property, real or personal, in pos- 
session or in action, or of any estate or right therein. But if 
the wage-earner is to have effective exemption of wages from 
attachment and garnishment, it is consistent that he be pre- 
vented from making an assignment of his future wages 

wavfTf ""'^"'^'^ ^^^^ ^'^ safeguarded in various 
ways, as by requirement that they must be recorded that 
cofxc. must be filed with the employer, or even that the 

S b tLTl"* T' '" °''^"^' °^ ^^'^t the wife must 
IZd? 1 husband's assigmnent. or mce versa. Missouri 

aaof TO ^ '"^rP't °^ ^'^"'^ *° '"'^'fy this evil. An 
act of igu provides that "all amounts of wages salaries 

LTnmeift "dl"' " ""^'"^ ^^^^ ^he correctTate ofthe 
assignment and the amount assigned, and the name or names 

t Sn^ °7r^. °"^"^ the wages, salaries, and eamteg" 
soa^signed. and aU assigmnents of wages, salaries, and earnings 

'46 and 47 Vict.. C. 31. Pt. IV. Sec. 44. 



* ' > g!nji i ^w;im»m*m fiat .m i tiim» M 



m 



m 



50 PRINCIPLES OF LABOR LEGISLATION 

not earned at the time the assignment is made shall be null 
and void." Assignments to secure loans or future advances 
are invalid in Georgia and Massachusetts, and all assignments 
of future earnings are prohibited in Indiana. 

2. The Laborer as Creditor 

Modern industry is conducted mainly "on credit." The 
employer is the middleman, whose creditors are those who 
advance the capital he uses, and whose debtors are those who 
buy his product. When the laborer starts to work for him, 
he also becomes, for a time, a creditor. He contributes his 
services in advance of compensation. He is a temporary in- 
vestor in the business. While he works he passes over to the 
employer the title to his product, and retains a claim for wages. 
When his wages are paid his investment is liquidated. 

Other investors advance money or "credit." Their con- 
tracts are secured by notes, bonds, mortgages, giving to them 
a preferred claim on the property and earnings of the busi- 
ness. They invest "capital" — the laborer invests "labor." 
Laws regulating the time, place, and medium of payment, 
laws providing for mechanics' Hens, wage preference, and 
so on, are intended to guarantee to the laborer as creditor, 
regardless of contract, that certainty of payment which the 
capitalist as creditor secures in the ordinary enforcement 
of contracts. 

(i) Time of Payment 

Legislation has not until recently* ventured to interfere 
directly and set the amount of wages, but it makes the amount 
of wages greater or less by indirect methods. Whatever the 
nominal amount may be, the frequency of the time of pay- 
ment is a matter of concern to the laborer. The longer he 
must wait for his wages the greater is the extent of his need 
for credit, and, accordingly, the higher will be his cost of 
living and the lower his real wages. The advantages of fewer 



^^--w.^*^;. 



^i 



INDIVIDUAL BARGAINING 



5- 



» See Chapter IV, "The Minimum Wage." 



pay days are ob\4ous to the employer. His cost of book- 
keeping is less, and his required circulating capital will be less. 

Over the entire world in industrial states there are statutes 
requiring a regular pay day, which may be once a month, 
.semi- weekly, or weekly. Many of the European laws are so 
phrased that modifications may be introduced according to 
local custom. 1 The Swiss government makes it incumbent 
upon the master to pay wages at any time according to work 
done, so as to enable the servant to meet an}^ special need, and 
the interpretation of the law is left to administrative officers.^ 

Two-thirds of the states of the United States, and Hawaii, 
have laws dealing with time and mode of payment of wages. 
Most of these laws provide for semi-monthly payment, and 
most of them stand without being contested in the courts 
to determine their constitutionality. Some cases have reached 
the courts, and different decisions have been rendered. 

In favor of the validity of such laws, it has been argued that 
semi-monthly payment of wages is require^ by the actual 
necessities of employees, and that regular payment of wages 
at short intervals is much more a matter of life and death to 
a workingman with a family dependent on him than to the 
employing corporation.^ The purpose of the Rhode Island 
weekly payment law was laid down by the court as being pro- 
tection of the worker from "the greed of corporate capital." 
Poverty and weakness, it was said, "can wage but an unequal 
contest with corporate wealth and power"; and the act was 
considered to be for the prosperity and comfort of the work- 
ingmen, who depend entirely on their weekly wages, and are, 
like other people, obliged to pay for credit."* 

The cases in which laws relating to time of wage payment 
have been held unconstitutional show, as might be expected, 
that less consideration was given to the practical economic 
facts of the situation. In these cases appears the usual argu- 
ment that the liberty of contract of the workingman is en- 

r,/l-^°^.r^^^?^TP^^' ^^® Netherlands, Bulletin of the International Labor 
Office, Vol. II, 1907, p. 411. 

2 Federal act to supplement the Swiss federal code, March, iqii. 
Hullettn of the International Labor Ujjice, Vol. VI, 191 1, p 96 

» Arkansas Stave Co. r. State, 94 Ark. 27, 125 S. W. 1001 (1910). 
State V. Brown & bharpe Mfg. Co., 18 R. I. 16 - ^ ^ ^ 

p. 252. ' 



jr Cf, 



25 Atl. 246 (1892), at 



!l 



51 PRINCIPLES OF LABOR LEGISLATION 

croached upon by legislation. In the case of Johnson v. 
Goodyear Mining Co.> an indignant protest was raised by 
the court against any interference with the liberty of con- 
tract "The worldngman of inteUigence/' it was said, is 
treated as an imbecile. Being over twenty-one years of age, 
and not a lunatic or insane, he is deprived o^^^he nght to 
make a contract as to the time when his wages shall fall due. 

There are several states which legislate to the effect that 
wages shall be paid during working hours. This accomplishes 
two things: it saves the time of the employee and precludes 
payment in bar-rooms. In Austria the time for payment of 
wages to mine workers is reckoned within the duration of the 
shift.* In Massachusetts, where there are loo or more per- 
sons employed in any establishment, wages are to be paid 
during working hours. In France payment of wages must 
not be made on days kept as rest days for employees. The 
law of Greece is fairiy representative of those of some other 
countries: it provides that wages shall be paid not later than 
the time when daily work is concluded, and that m under- 
takings with more than 200 workers the manner of paying 
wages may be regulated by administrative order. 

Most of the states and countries provide that an employee 
shaU be paid immediately upon discharge, and for delay 
thereafter is entitled to interest charges— in the case of Iowa 
$1 a day penalty up to twice the amount of the wages due^ 
In some cases this penalty is 5 per cent, a year to be added 
for the cost of the delay, and the attorney's fee if his services 
are necessary to procure wages withheld from an employee. 
When an employee quits, the law generally stipulates that 
he shall be paid at the next regular pay day. 

(2) Place of Payment 

The evil attached to the payment of men in saloons needs 
no elaboration, and it is to be noticed that this evil is partly 

" » Johnson V. Goodyear Mining Co.. 127 Cal 4. 59 fac^?°4 (i899). 
^Bulletin of the Internahonal Labor Office, Vol. Vll, 1912, P- 24^. 
*Lois,Dicrets, ArriUs concernant la RigUmeniaUon du Travail, Bk. I, 

^^•'iii/^n ^of the'inUrnational Labor Office, Vol. VII, i9i2, p. 290. 



\- 



i 



INDIVIDUAL BARGAINING 53 

taken care of in some places by providing that wages shaU 
be paid upon the premises, as in Servia and Beme. This 
coincides with most of the legislation of the American states 
on the subject. California and Nevada, however, specific^ly 
provide that payment of wages shall be made to no one in 
bar-rooms except it be those employed therein. Austria, 
wfi'T; '^l Geimany.. and Great Britain » have aU 

l^slated against payment of wages in pubUc houses and 

(j) Basis of Payment 

In the United States there are some statutes that prohibit 
tirourtZ^ °^ coal before it is weighed, the loss'l.Tcod 
toThe^mWr T" •'""^ '^^^^ ^ ^"^e *n ""just loss 
held^an^^ -.^ The v^dity of such laws has been both up- 

M^lTn^ s'S. ^ ? v'''"* f^^ ^"^- ^' ^ the case of 
McLean v. State of Arkansas' the Supreme Court held the 
law to be withm the poUce power of the states. 

U) Medium of Payment ' 

f 

Cnlyl, fclaimed .gama . modem cirifation rtose onlv 
bond of umon n th. ash Mus. Yet, from . dMn^„2 

counts ^'^^ P"^' '^"gh bookkeeping ao- 

_^^vins In." Under systems of slavery, serfdom, in- 

■9^8':Tp* 96"9f • ^^P"""-*-' Committee on Truck Acts. Report 

• McLean v. ArkanjaK :>i i no. 

nrKansas, 211 U. S. 539. 29 Sup. Ct. 206 (1906). 



i 



II 



r 






54 PRINCIPLES OF LABOR LEGISLATION 

denturcd service, and apprenticeship the laborer lived on the 
premises of his master. The most complete survival of these 
systems in modem industry is known in England as "living 
in," where the employee receives part payment in board and 
lodging at his place of employment. The system is en- 
coimtered in all countries, and is characteristic of domestic ser- 
vice. Very often "living in " is made a condition of employ- 
ment, either express or implied, and the board and lodging 
accommodations provided are often inferior and inadequate. 
The system may rob the employees of their sense of personal 
responsibility and check individuality and independence of 
character. There is frequently no freedom of complaint, for, 
if the workers venture to remonstrate about food or lodging, 
they render themselves liable to dismissal and "spoiling" their 
references. In Great Britain the committee on the truck 
acts in 1908 recommended regulations as to accommodations 
provided in "living in" establishments, but did not seem to 
have a clear case for the abolition of the system. However, 
a minority ref>ort advocated its entire abolition.* 

In Berne the law of 1908* requires that food provided for 
the employees must be sufficient and wholesome and that 
the accommodation must satisfy all sanitary requirements. 
In Austria the administrative authority may determine by 
order that, in the case of tmderta kings of a certain kind or 
situation in certain districts it shall be unlawful to provide 
board or lodging for the employees as a part of their remu- 
neration.' In South Australia the occupier of an establish- 
ment and the members of his family are prohibited from lodg- 
ing and boarding adult persons in his service, in the case of 
those whose wages are fixed by wage boards, exception being 
made in the case of hotels, dubs, restaurants, and the like.* 

In the United States the subject of "living in " has not yet 
come into the realm of legislation, but it exists in hotels, 
restaurants, bakeries, and clubs. 

b. Company Houses and Labor Camps. The employer may 



* Great Britain, Departmental Committee on the Truck Acts, Report, 
1908, Vol. I, p. 78; Minority Report, Vol. I, p. 84. 

« BulUtin of the International Labor Office^ Vol. Ill, 1908, p. 122. 

* Ibid,, Vol. V, 1910, p. 203. 
« /Wtf., Vol. VII, 1912, p. 20. 



INDIVIDUAL BARGAINING ' 55 

build "company houses" for his workmen which they must 
occupy, and the rent is then deducted from wages. Fre- 
quently these houses are better than those which the em- 
ployees would provide, but they have counteracting dis- 
advantages in contractual ties of dependence. In New York 
where factory operatives are given living quarters, these may 
be regulated by the industrial commission, which has power 
to enter and inspect.^ Labor camps for certain kinds of work 
have been brought imder regulation in certain states, as Cali- 
fornia,* New York,» and Pennsylvania.* In California the 
state board of health is ordered to condemn any camps which 
are dangerous to public health. 

c. Company Stores. The "truck" system, or "truck" in 
English usage, is the term which denotes payment in kind, 
or otherwise than in cash.» In the United States this is 
generally treated under such terms as "store orders," "pay- 
ment in scrip," or "company stores." Legislation respecting 
the truck system falls into three classes: (i) laws that would 
eliminate it altogether, at least in business establishments 
where it is a real evil, such as mining, manufacturing, and 
railroad corporations; (2) laws which permit the system, but 
which regulate the prices charged and the quality offered; 
(3) laws which allow the institution to exist, but which en- 
deavor to eliminate coercion of employees to make use of the 
system. 

Among the first class would come the laws of many* of the 
leading industrial states, such as Maryland. Massachusetts 
New Jersey, New York, and Pennsylvania, and France of the 
European countries—the latter having, perhaps, the most 
complete law aiming at the abolition of the entire system.^ 
. The second class includes Connecticut, Indiana, and Vir- 

1 J?^,^Yo»-k, Laws 1913, C. 195. 
•California, Laws 1913, C. 182. 
• New York, Laws 1913, C. 195. 
; P«""fy^vania, Laws 1915, No. 397, Sec. 18. 

1903!^ 4 ' Departmental Committee on the Truck Acts. Report, 

•Bulletin of the InUrnational Labor Office, Vol. V loio d 177- Art 

or?n'■cWti*T^?^^P' andprohibiting employers from sellh;?^ Ji^ectiy 



56 PRINCIPLES OF LABOR LEGISLATION 

ginia. Here prices must not be unreasonable, or higher to 
the employees than to others who are not employees. Of 
course, if the town should be owned by the corporation, the 
law could not have much effect, and, for that matter, no anti- 
truck legislation can accomplish much for the laborer in a 
town where the land and buildings are all owned by the 
employing corporation. 

In the third class would fall the laws of a dozen other states, 
mainly in agricultural areas, and the laws of practically all 
the foreign countries, omitting Holland and Italy, which have 
no such general laws. 

The last two groups have this in common, that both regu- 
late prices. Although penalties provided seem to be ample, 
yet in the United States the administrative features are weak, 
as typified by the case of Colorado,* where, if the attorney- 
general should fail, neglect, or refuse to act after a demand by 
a responsible party, any citizen has a right to institute pro- 
ceedings upon giving bonds for cost of suit. Obviously, the 
workman is in no position to give bonds or to bring suit, for 
he can afford neither the expense nor the loss of the job 
which such a procedure would entail.* 

(5) Deductions 

The problem of deductions from wages involves (i) de- 
ductions in respect to fines, (2) deductions as payment for 
damages, (3) deductions for use of material and tools, (4) 
deductions for benefits. 

Fines are imposed, presumably, for disciplinary reasons, and 
vary in application and amount in different establishments 
and with the caprice of the individual employer. They may 
not always be a real deterrent, but may on the other hand 
lead to carelessness, suggesting to the worker that he has paid 
for what he has done. They may be unfairly imposed, creat- 
ing a sense of injustice and irritating the workers, and they 



INDIVIDUAL BARGAINING 



> Colorado, Revised Statutes, 1908, Sec. 6905. 

* Respecting the variety of decisions on the constitutionality of this 
class of legislation, see Freund, Police Power, 1904, pp. 305-308; Clark, 
Law of the Employment of Labor, pp. 65-72; Stimson, Handbook to the 
Labor Laws of the United States, 1896, pp. 1 04-1 10. 



|i 



57 
may even prove to be a source of pettv Drofit<; fn the. , 

termines the amount of damage done and niitc +»,»„• 
materials spoiled. It is humLly tapo"sible to dV""^ "? 
work, and no matter how good a wo^er mav be «f ^- ^ T 
faults will occur at times. Such S Ire Dar^„f.^' *'^^"' 
facture^- risk ^d should be d^t^^rs^^' * ThTT" 
ployer is hunself often to blame for setfin7=.!r- ' • ^7 
hand to do work for which hTi:^^ ::m^l^ -^Penenced 
The case of charges for materials and tools used hv -.„ 
ployees mvolves the same principle as in tZV^- ^ *'"' 
This system is intended to s^c^ Lnomv fn .r"^""",^"' 
terial by making the worker re^n^^Tw ^* ""* °^ '^- 
point of view of the wn,W f^^ . .however, from the 

cause of th:^s£u:;ToZtSirii^^''''''^''f''.'^- 

however strict, can altogetheT^Tn'' "^ "° ''^"*'°"' 

tioStStal%t "Tn^sfcl^rsr'' ^"^'^ " ^^'^^ ^«- 
states and co^^ri^st^lZ'T'TT' T ^°^^^ ^Y a" 

South Wales ^nTw'^^L'Zlt'^^;:^^^^^^^^' ''''' 
not exceed the value of fh« .J" . -' "^"at the deduction must 

stated, this is glnerallv iSni .J"^ ""f.^''"^' ^"•^' ^^^en not 

also, ihese dXtLt^^'CeT S T"'""- ^^•>'' 
previous contract AhontToU !. '" pursuance of a 

York. New feSv a^ n.f ^ ^°'^I' ''^^^' ^^^^^^ng New 

forced coi^^ribSs for Sl^i '^''"^'""^ 'f^^'^*^ ^S-'"' 
condition of empTo^t ^Z """^^^^t^* benefits as a 

which has legalildTduction^^r ^ '' -f . f ^'"P'^ "^ * «***« 
requires thaf sul Sue ons m^^tT"^' ^"''~''^' ^"* ^^ich 
dustrial accident aZ^S'. T n. TT"^ ^^ *•>« '"- 
regulation of deduct^Tor K. 1 "/^/^^elopment in the 

* Oregon, Laws 1917, C. 393. 



If 



lit. 

ft 



58 PRINCIPLES OF LABOR LEGISLATION 

old-age insurance, to secure a license for the benefit plan from 
the state insurance commissioner.' 

A corporation may furnish insurance, lessening many hard- 
ships of life for the workingman and his family; but this in- 
surance IS enjoyed only as a result of continuous employment, 
which in turn often involves oppressive dependence. Espe- 
cially is this true when after a number of years the working- 
man has acquired rights which may be lost by change of 
employment. Thus the burden may become great with in- 
creasing years, as new employment with insurance becomes 
more and more difficult to secure.* 

Provisions are found in some laws, in connection with 
employers' liability, and sometimes confined to railroads, 
which regulate or prevent the payment of benefits to injured 
employees as a means of escaping from such liability. About 
half the states, the Philippine Islands, and the federal govern- 
ment have enacted that no contract of insurance or relief 
benefit shall constitute a bar to action by an employee for 
damages in case of injury or death. » Florida directly says 
that the existence of a relief department, by which the em- 
ployer pays benefits to the workers, shall not relieve such 
employer from responsibility in case of death.* It is some- 
times added, however, that the employer may set off against 
such a claim any sums he has contributed as benefit.^ In 
Georgia the payment of wages up to $100 on the death of an 
employee is a sufficient release on the employer's part.« 

In the act of 1896 ' the first attempt was made in England 
to protect the worker from harsh and unreasonable fines. 
This act provided that there must be formal agreement for 
the fines; that the fine must be for something which causes, 
or is likely to cause, damage or loss to the employer or inter- 
ruption or hindrance to his business; that it must be fair and 
reasonable, having regard to all the circumstances of the 
case; tha t written particulars must be given to the worker 

* Minnesota, Laws 1^19, C. 388. 

Ti/^}?' ^^^P^^%<^P^yontracts in Their Relations to the Distribution of 
Wealth, , 1914, Vol. II, p. 714. ^ 

• Sec, for instance, Ohio, Laws 1910, p. 195. 

* Florida, Laws 19 14, C. 6520. 

• Sec, for instance, Wisconsin, Laws 1913, C. 644. 

Georgia, Code 1910, Sees. 3134-3136. ' 59 and 60 Vict., C. 44. 



INDIVIDUAL BARGAINING 



59 



each time a fine is exacted; and, finally, that there shall be 
a register of fines open to inspection.* 

In the United States there is little legislation dealing with 
deductions as fines — a dozen states in all.' Massachusetts 
says fines shall not be levied except for imperfect work,' and 
Louisiana prohibits them except when employees wilfully or 
negligently damage goods or property of the employer. 
Arkansas and Connecticut regulate discount of wages because 
of early payment. The rest of the states permit no deductions 
unless in accordance with certain procedure and with full 
consent of workers. The Australasian countries have no 
legislation on fines. In Austria, Belgium, Germany, and 
Holland fines are regulated in piu-suance of a previous con- 
tract or published rules. In France fines cannot exceed one- 
fourth,* and in parts of Switzerland not more than one-half, 
of the daily wage.* In both these cases as well as in Holland 
the fines must go toward a workers* benefit fund. 

A clause dealing with deductions, not levied for inferior 
work or for destruction of property, appears in Massachu- 
setts,' where no deductions are to be made from the wages 
of women and minors when there is a stoppage of work owing 
to a breakdown of machinery, and the workers are not allowed 
to leave the mill. Foreign countries, while they sometimes 
limit the extent of deductions for materials used, still do not 
prohibit them. Although the labor codes generally state that 

* Great Britain, Departmental Committee on the Truck Acts. ReborL 
1908, Vol. I, p. 6. t tr t 

'Arkansas, Connecticut, Hawaii, Indiana, Louisiana, Maryland, 
^^^chusetts. Michigan, Mississippi, New Jersey, Nevada, Ohio, and 

•Massachusetts, Laws 1909, C. 514, Sec. 114. Under the terms of 
this act fines for miperfect weaving may be levied only after the imper- 
lections have been pointed out and the amount agreed upon by both 
parties. Apparently these provisions did not sufficiently protect the 
weavers, for m 1911 another act was passed stating that "No employer 
shall impose a fine upon an employee engaged at weaving for imperfec- 
tions that may anse dunng the process of weaving" (Laws 1911, C S84). 
Ihe court, however, rendered the new law nugatory by its limited in- 
teq^retation of the word "fine." (Commonw^lth^tr. LncastS MuS. 
212 Mass. 315. 5>8 N. E. 864 (1912).) ' 

1908 ^^1 ^"^'"' Departmental Committee on the Truck Acts, l?^^(w/, 

! ^«^'*« «/ the 'international Labor Office, Vol. Ill, 1908, p. 125. 
•Massachusetts, Lawsi909,C. 514, Sec. 119. ' i^ "5- 



y 



r 



I 



60 PRINCIPLES OP LABOR LEGISLATION 

prices shall not be excessive, this is a goal reached only by 
effective administration. 

(6) Mechanics* Liens and Wage Preference 

/^ The idea that wages are to receive special treatment, that 
/ they are to be paid before other claims, that security is to 
I be given for their payment, and that they shall be exempt up 
\ to a certain amount from execution, underlies legislation on 
I mechanics' liens, on wages as preferred claims, and on wage ex- 
I emption. The last of these subjects is treated elsewhere ; ^ here 
we consider the preferential treatment of the laborer as creditor. 
Mechanics' lien laws represent a stage in the progress to- 
ward wage preference, but they should not be confused with 
it. They are founded on the still older practice of giving 
contractors and builders a claim for payment on houses they 
built and the land that these were built on. 

In 1830 the first mechanics' lien law was passed by the New 
York legislature 2 and was based on the following considera- 
tions, set forth in a committee report : 

"The conmiittee are credibly informed that the severe and 
heavy losses sustained by the laboring interests have arisen 
far more frequently from insufficient, reckless contractors, 
having nothing to lose, than from contractees. . . . They 
would be distinctly understood, declaring it as their un- 
divided opinion that a mortgage given to secure the pa^Tnent 
of money lawfully borrowed, the justice of which no one will 
presume to dispute, is Tiot a more equitable claim than that 
of the mechanic and laborer on the dwelling-house and other 
buildings, and ground on which the same are erected, so far 
as their claim and demand can be correctly ascertained." ^ 
f Mechanics' lien legislation seeks to give the laborer a claim 
I for the payment of what is due to him, backed by the security 
Y of the structure or land on which he has been employed!\ It 
exists in all the states, and extends to labor performed on 
public works, railroads, in mines, and on the land, as well as 
to limibering, construction and repair of vessels, sawmiUing, 

1 See "Wage Exemption," p. 47. 
» New York, Laws 1830, C. 330. 
' New York Assembly, Documents^ 1830, No. 24. 



INDIVIDUAL BARGAINING 



61 



and other occupations. Such liens are generally ranked as 
coming before other payments; and in many cases where 
contractors and subcontractors are entitled to benefit in a 
similar way, the wage-earner's claim is put first. ^ 

The next step was the provision that wages should be con- 
sidered as preferred claims. Nearly all the states and the 
federal government have laws providing that in cases of 
assignments, administrations, and receiverships due to death 
or bankruptcy, the wages of servants and employees, up to a 
definite sum and for work done within a limited time, shall be 
paid next after fees, costs, and taxes.^ France has a law giving 
preference to wage payments.^ Great Britain and her colo- 
nies include in their bankruptcy laws preferential pa5rment 
claims, providing usually that salaries of clerks not exceeding 
$500 and wages of laborers not exceeding $125 shall have 
equal claim to payment with taxes and expenses. The British 
bankruptcy law * now includes national insurance contribu- 
tions and amounts due for workmen's compensation in this 
category. New Zealand has a hona fide contractors* and 
workmen's lien act resembling the American legislation.^ 



3. The Laborer as Tenant 

(i) Classes of Agricultural Workers 

Of the 30,000,000 males over ten years of age engaged in 
gainful occupations in 19 10, 10,700,000, or more than one- 
third, were employed in agriculture. Of this ntimber some- 
thing less than 4,000,000 were owners operating their farms. 

^ California, Colorado, Idaho, Illinois, Louisiana, Nevada, New Jersey, 
New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, 
Washington, West Virginia. 

^Alabama, Arizona, Arkansas, California, Colorado, Connecticut, 
Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, 
Maryland, Maine, Massachusetts, Michigan, Minnesota, Missouri, 
Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, 
New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, 
Rhode Island, South Dakota, Texas, Utah, Washington, Wisconsin, the 
Phihppme Islands, and the United States. 

I Lois, Decrets, Arr^tes concernant la Rtglementation du Travail, Bk. I, 

6\t • ^^' F' f^- '^^' 47. U and 5 Geo. 5. C. 59, 1914. 

» New Zealand, Statutes 1892, No. 25. 



62 



PRINCIPLES OF LABOR LEGISLATION 



INDIVIDUAL BARGAINING 



6$ 



More than 2,000,000 were tenants,^ and 4,700,000 were la- 
borers working for owners and tenants. But these figures do 
not represent the actual proportions of wage-earners and em- 
ployers in the sense of the wage bargain as understood in 
manufactures and other industries. Of the 4,700,000 laborers, 
2,100,000 were members of the family of the owner or tenant, 
and, therefore, their labor contracts do not exhibit the strictly 
business relation of employer and employee in the modem 
wage bargain. Such labor problems as they present, from 
the standpoint of legislation, are mainly those of child labor. 

a. Hired Laborers. The remaining 2,600,000 are hired la- 
borers, and to them would be applicable labor laws similar 
to those enacted to protect laborers in other industries. How- 
ever, as a matter of fact, labor legislation in the United States 
has had very little to do with farm labor. Laws like those 
regarding workmen's compensation, safety, health, or hours 
of labor vSometimes either specifically exclude agricultural 
labor from their operation or are not applicable. Other laws, 
such as laborers' liens, wage exemption, prohibition of in- 
voluntaiy servitude, and the like, are so general or funda- 
mental that they apply to farm labor. 

Hired laborers are of two classes, considerably different in 
their condition. About 200,000 of those entmierated appear 
to be ' '.casual ' ' labore rs, hired usually by the day, and 2,400,- 
000 are hired By the month or year. The nimiber of casual 
laborers is doubtless greatly underestimated, for the Census 
eniuneration is made in April, whereas the largest number of 
this class of laborers is employed during the harvest seasons 
from July to November. They are enumerated in April in 
other industries, and are the migratory laborers who appear 
in the logging-camps and ice harvests, as well as temporary 
laborers in other occupations. 

The niunber of 2,400,000 farm hands regularly employed 
is also understated, because an uncertain number of tenants 
are really hired laborers imder a special form of tenant con- 
tract and should be classed as employees rather than tenants. 

» Thirteenth Census of the United States, Vol. IV, iqio, p. 302. This 
figure is obtained by combining the estimates for agriculture and animal 
husbandry. Tlie Census distinguishes the number of farms operated by 
owners and tenants, not the number of owners and tenants; hence these 
numbers are estimated. 



h. Tenants. The Census gives the nimibers of two kinds 
of tenants, 712,000 * 'cash" tenants and 1,528,000 * 'sl^a.rft'* 
tenants.^ By cash tenant is meant not one who pays rent 
in actual cash, but one whose rent is definitely fixed and cer- 
tain and is stipulated in advance in the contract either in 
dollars, in labor, or in products. It may be $7, ten bushels of 
wheat, or 100 pounds of cotton per acre. Evidently the 
*'cash" tenant is a small capitalist, a contractor, or an em- 
ployer, since he invests his own money or labor and takes all 
of the risks of the business. His gains are profits rather than 
wages; his bargain with the landlord is a price bargain, not 
a wage bargain. 

The share tenants are more difficult to classify. They may 
be either small capitalists or simply farm laborers, and the 
Census does not distinguish between the two. A share tenant 
pays the landlord as rental a certain share of the product, as 
one-half, one-third, or one-quarter. In making such a con- 
tract the tenant would appear to be a contractor or capitalist, 
who takes, not indeed the whole risk of the business, but a 
part of the risk. Such is the case if he actually invests his 
own capital, such as horses, cattle, implements, and so on, and 
runs the risk of losing his capital on the chance of increasing 
it. He would figure the outcome as profit or loss. 
^ c. *' Croppers:' But if, on the other hand, the tenant 
"invests" nothing but his own labor, and the landlord fur- 
nishes all of the working capital, then the landlord is the 
capitalist-employer, the tenant is a laborer, and the bargain 
IS a wage bargain. His wages, however, are not the stipulated 
daily or monthly wages received by a "hired man," but they 
are contingent wages, similar to those paid to a piece-worker, 
or, rather, to a sailor on a whaling-ship, who receives a share 
of the product at the end of the voyage. This system of wage 

payment is spoken of as ',;product.sharir^ to distinguish it 
from "profit sharing. "2 

The terms "cropper" and "cropping contract" will be 
used here m to designate this kind of labor-tenant under 

. 'Thirteenth Census of the United States, Vol. V. ion o q7 Thic 
* D. F. Schloss, Methods of Industrial Remuneration, 1891, p. 249. 



64 PRINCIPLES OF LABOR LEGISLATION 

the system of share tenancy. The terms originated in the 
southern states, where share contracts are most prevalent 
and where they account for the high percentage of tenancy. 
In loio 66.8 per cent, of the tenancy in the South was 
share tenancy, including both farmers and laborers on shares 
while only 31.6 per cent, of northern and 1.6 per cent, of 
western farms were operated on a system of share tenancy. 
In popular usage, the term " cropper" includes both the share 
farmer, or small capitalist, and the share laborer. Both are 
croppers The courts, however, have settled upon the term 
"cropper" to indicate the laborer ,2 and, adopting this usage, 
we can distinguish the cropper,,asa laborer ja^ wages are^ 

measatelbyaj^^ ^^ ^ 

^ frim the share tenant, as a smalTcapitalist paymg rent. 
^ No reliable estimate can be made of the number of croppers. 
Indeed, the amount of capital owned by the farmer may be 
so small that he would be looked upon in other mdustnes as 
scarcely more than a mechanic furnishing his tools and taking 
out work on a contract. The distinction is made in the laws 
of Alabama » which define a share tenant as one who owns his 
team, and the cropper as one whose landlord owns the team. 
The law of Texas, enacted in igiS,' is the first Amencan law 
designed to regulate the rents of share tenants. It attempts 
to prevent the landlord from charging more than one-half 
of the value of the product if he furnishes everything except 
labor, and more than one-third of the grain and one-fourth of 
the cotton if the tenant furnishes all of the operating capital. 
Thus it distinguishes and regulates both the rent of the 
farmer and the wages of the cropper. 

In other states, where the legislature has not attempted to 
standardize or regulate the share contracts, the courts have 
been compelled to decide in each case as it anses whether the 
laborer is a cropper working for wages under a labor contract, 
or a tenant-farmer paying rent under a lease. It he is a 
cropper, then, in case of dispute, he would be awarded what 

1 Thirteenth Census of the United ^J^tes. VoL V 1913. P- J I3. 

^ Steel V. Frick, 56 Pa. St. 172 (^867): Harnson r. Ricks 7^^^^. 7 
(1874); Almand v. Scott, 80 Ga. 95. 4 S. E. 892 (1888). tlammocK 
Creekmore, 48 Ark. 264. 3 S. W. 180 (1886). 

» Alabama, Code 1907, Sees. 4742. 4743. 

* Texas, Laws 1915. Article 5475 (3225J* 



INDIVIDUAL BARGAINING 



65 



similar laborers in the locality receive as wages, regardless of 
the value of the crop. If he is a tenant-farmer he is awarded 
his share of the crop, regardless of what he might earn as wages. 

In order to decide the point, the courts look into the con- 
tract to discover which party has the control and direction 
of the farming operations and the legal possession of the crop 
at the end of the season. In brief, if the landlord gives orders 
as to cultivation, and has legal possession and the right to 
divide the crop and give the tenant his share, the contract is 
a labor contract.^ But if the tenant is "his own boss" and 
has legal possession of the crop, and gives the landlord his 
share, the contract is a lease.2 Generally it turns out that, 
in proportion as the tenant advances a larger and larger share 
of the working capital, the contract which he is able to make 
is a lease and gives him not only a larger share of the product, 
but also a chance to make a profit in addition to wages; while 
the smaller the proportion of capital which he advances, the 
less is his share and the more nearly the contract becomes a 
labor contract. 

If the contract is a lease, the landlord has a preference lien 
on the crop for his rent.^ If it is a labor contract, the laborer 
has a laborers' lien on it for his wages.* 

{2) Agricultural Labor Legislaiion 

The foregoing distinctions indicate differences in the kind 
of legislation needed to protect agricultural labor compared 
With that protecting industrial labor. The one modifies main- 
ly the law of landlord and tenant, the other that of employer 
and employee. Farming is, for the most part, a small-scale 
industry, and there is opportunity for individuals to rise into 

fielcf^Twk '^-.n'nY m'\?^^^-/pP; 487 (1900); Kelly .. Rummer- 
St ;.i ^^/^a;! x^.^^.^« \ % ('903); Bowman v. Bradley, i^i Pa. 

Ontl^i:'^t\\%l^l'^^^^^^ '' ^^^^""^"' '^ '''■ ^37 0860); 

'7Q'^q''w*o^*■^'^^^^^^9.^• ^- '29 (1868); Neal v. Brandon. 70 Ark 
^^i ^ aY^' ''??• ^u^^^' Almand v. Scott, 80 Ga. 95, 4 S E 802 f 1888) 
71 Md^ef ,8 ?tf'^;''^ i";i^''' V ^- 7"- '^^ OW)^ Hopper'' Hafnek 
II N W*' ..o r 800^ ''wV- '5^ ^'e^^9); Keoleg .. Phelps, 80 Mich. 466 
'l^^tor^e,'^,^^^^^^^^^ ^9 Ala. 302 (1881); Not v. 

^Gnsson .. Pickett. 98 N. C. 54, 3 S. e". 921 (1887). 



66 



PRINCIPLES OF LABOR LEGISLATION 



INDIVIDUAL BARGAINING 



67 



the position of independent owners. Beginning, perhaps, as 
a casual laborer, the next step is that of the farm laborer hired 
by the month or by the year, and living with the family of the 
owner. Next, with a family of his own, the steps upward are 
cropper, share tenant, cash tenant, owner with mortgage, and, 
finally, ownership unencimibered. Legislation may aid or 
obstruct this upward movement. 

If the share tenant, whether cropper or farmer, is not per- 
mitted to acquire any title to such permanent improvements 
as he adds to the land, his condition is practically the same 
as that of the wage-earner, who has no title to his own prod- 
uct. Like the laborer, he tends to be kept permanently in 
that class. This is the condition of croppers and share 
tenants in the United States, and the result is seen in their 
frequent movement from farm to farm. Such tenants, with- 
out title to their "savings" in the form of improvements, can 
do but little in the way of acciunulating the capital necessary 
to rise to the higher steps, and their instability and lack of 
incentive are equally serious factors in their own deterioration 
and in that of the soil. 

This condition received legislative attention first in Eng- 
land. There had been a strong agitation favoring the enact- 
ment of legislative measures to compensate tenants for im- 
provements made on the landlord's estate, but not until 1850 
was a bill introduced into Parliament favoring a reasonable 
allowance for such improvements. The bill did not pass, but 
similar measures were brought before that body several 
times, and in 1875 an act was obtained stipulating the con- 
ditions under which an outgoing tenant was to be paid for 
improvements. However, no provision was made compelling 
landlords to contract under the law, and as a consequence the 
statute was ineffective. 

In 1883, a new bill, known as the agricultural holdings act, 
was passed, compelling all landlords to make their leases with 
tenants subject to compensation for improvements. 

Even with compensation for improvements it requires time 
and trials for the tenant or purchaser to find a suitable farm. 
Finding the tenant a farm has a direct relationship with the 
finding the laborer his job.^ The importance of this prob- 

* See "Public Employment Exchanges," pp. 297-307. 



^ 



J 



lem IS keenly felt, as is shown in an investigation made by 
the United States Department of Agriculture. * In accord- 
ance with a statute enacted in 1905, New York state ^ estab- 
lished a bureau of information regarding farms for rent and 
sale and positions for agricultural laborers. It was claimed 
that this bureau had secured work for about 15,000 men on 
farms during the first three and a half years of its existence.^ 
The bureau also issues a bulletin dealing with the farms to 
be disposed of throughout the state. 

Legislation of various countries also provides credit agencies 
to enable the tenant or farmer to acquire advances of capital 
necessary to secure permanency in his position. The Schultze 
Delitsch and Raiffeisen banks in Germany and Austria, the 
Credit Foncier in France, the cooperative banks in Italy and 
Russia, are private cooperative credit systems operating under 
government supervision."* New Zealand, Australia, Ireland, 
and the provinces of Nova Scotia and New Brunswick in 
Canada make loans to farmers, as do also Idaho, Indiana, 
Iowa, North Dakota, Oklahoma, Oregon, South Dakota, and 
Utah.^ Congress in 19 16 passed a rural credit law, providing 
for the formation of a cooperative rural credit system on a 
national scale. 

In New Zealand the "advances to settlers'* systxim is ad- 
ministered by the New Zealand State-guaranteed Advances 
Office. Loans are repaid to the advances office in semiannual 
instalments of principal and interest. Interest is charged at 
the rate of 5 per cent, a year, but this rate is reduced to 4>^ 
per cent, if payments of interest and principal are promptly 
made.' 

In regulating the contract of landlord and tenant the prob- 
lem of administration is similar to that of regulating the 

1 United States Department of Agriculture, Statistics Bulletin No. q4, 
1912, "Supply of Farm Labor," George K. Holmes. 

2 New York, Laws 1905, C. 243. 

'New York State Commissioner of Agriculture, Seventeenth Annual 
Report, 1910, p. 164. 

^ * American Commission on Agricultural Cooperation and Rural Credit 
m Europe, Report, Part I, 1913 pp. 24, 181, 182, 237, 438, 63d Congress, 
1st Session, Senate Document No. 214. 

6 Wisconsin State Board of Public Affairs, Bulletin on State Loans to 
Farmers, 1913, p. 4. 

^ Ibid.^ pp. 14 ff. 



68 



PRINCIPLES OF LABOR LEGISLATION 



INDIVIDUAL BARGAINING 



contract of employer and employee. At first the matter is 
left to the courts as is the case with the Alabama and Texas 
laws and the British legislation above mentioned. Afterward 
it is found that the tenant, like the wage-earner, is unable to 
avail himself of the aid of the courts. Then, an administrative 
body or commission is created to deal with each contract as 
it arises. In the case of the tenant contract, it is the highly 
inflated value of land that offers the chief obstacle to the 
laborer or cropper in advancing to the position of owner. 
This obstacle was attacked in Ireland, in 1881, by the crea- 
tion of a land commission to fix rents. The commission 
reduced rents 15 to 20 per cent. Later, when the govern- 
ment began to make loans at low rates of interest, in order to 
encourage farm ownership, and then began to compel the 
landlords to sell to their tenants, the land commission fixed 
the fair value of the land. Otherwise, the government loans, 
at 3 per cent, interest, would have served only to inflate land 
values further, and the landlord would have absorbed the 
benefit intended for the tenant. Thus the Irish Land Com- 
mission does for landlord and tenant what a public utility 
commission does for corporation and consttmer, or a mini- 
mum wage commission for employer and employee.* 

4. The Laborer as Competitor 

From one point of view all labor legislation has as its ob- 
ject the protection of the laborer as a competitor. The wage- 
bargaining power of men is weakened by the competition of 
women and children, hence a law restricting the hours of 
women and children may also be looked upon as a law to 
protect men in their bargaining power. The same is true in 
a different way of industrial education and free schools, for 
they tend to reduce the competition for the poorly paid jobs 
by increasing the efficiency and the wage-earning power of 
laborers who otherwise would be serious competitors. But 
for these classes of legislation the protection of the laborer as 



69 



*See Irish land acts of 1881, 1885, 1903, and 1909 in the English 
statutes; Cant-Wall, Ireland under the Land Acts; American Com- 
mission on Agricultural Cooperation and Rural Credit, Report^ I9i3f 
p. 865, 63d Congress, 1st Session, Senate Document No. 214. 



a competitor is not the main object. There are two classes of 
legislation, however, of which it may be said that the main 
purpose has been to pifotect the American workman from 
competition of poorly paid laborers: (i) legislation on immi-^ 
gration, especially the laws against induced immigration and S 
the Chinese exclusion laws; (2) legislation as to the sale of j 
goods manufactured by convicts. ^ 

(j) Protection against Immigrants 

Immigration legislation tends more and more to develop 
along protective lines. At first a country encourages people 
to come, in order to develop its resources ; later means have to 
be found to safeguard the interests of the existing population. 

There are four protective purposes which are served by 
immigration legislation. The first is the social protection of 
the community generally. It is obvious that every state will 
regard certain classes as objectionable; hence the prohibitions 
that the United States puts on the landing of prostitutes (since 
1875), criminals (1875), professional beggars (1903). Polyga- 
mists (1891) and anarchists (1903) are excluded, partly on 
social and partly on political grounds. The exclusion of 
Orientals (1882), again, may be justified on the principle that 
they are unlikely to live successfully together with the other 
races in America. Since political offenders are on a different 
level from ordinary offenders against the law, they have al- 
ways been exempt from such exclusion (1875). 

A second kind of protection, that of the national health, 
is afforded by the laws which attempt to keep out those 
immigrants suffering from contagious disease (1891), es- 
pecially from tuberculosis (1907). 

A third type of excluded class is made up of those persons 
who are looked upon as constitu ting a danger to the tax- 
paying classes. Legislation designed to keep out persons likely 
to become a public charge (1882) aims at protecting the tax- 
payer from having to support such individuals. The fear that 
lunatics, idiots, or epileptics may also become charges on the 
community is chiefly accountable for the prohibition (189 1) 
against their coming into the country. Again, the repeated 
efforts which were made to introduce a literacy test, culmi- 



70 



PRINCIPLES OF LABOR LEGISLATION 



INDIVIDUAL BARGAINING 



71 



nating in success, over the President's veto, in 19 17, may 
have been inspired partly by a feeling that the illiterate are 
more likely to become destitute than others. A head tax, 
generally used for revenue alone, may at times become a sort 
of property qualification. In the United States it was at 
first 50 cents (1882) and has been gradually raised to $8 
(191 7), which is not exactly a prohibitive figure; but in 
Canada, it is fixed at $500 for Chinese who do not belong to 
one of several enumerated professional classes.^ Finally, per- 
sons traveling on assisted passages who cannot prove that 
they do not belong to any of the excluded classes are not al- 
lowed to land (1891); after being dependent on others such 
persons might easily come to be dependent on the state. 

The fourth kind of protection put forth by the law over 
the people of this country is, from the standpoint of labor 
legislation, the most important. The contrast between the 
protection afforded to American goods in the commodity 
market and the lack of any such effort to lessen the competi- 
tion of labor in the labor market was early noticed, and efforts 
have been made since 1868 to control immigration after the 
example of the tariff. In that year the act of 1864 encourag- 
ing immigration was repealed ^ and a start was given to a 
new, negative, policy with regard to immigration. This new 
policy had particular reference to what is commonly but in-, 
accurately called "contract labor," or induced immigration, i 

a. Induced Immigration. The eighteenth century type 01 
immigration had been very largely due to inducement, some- 
times, indeed, to compulsion. After the first quarter of the 
nineteenth century indentured labor ^ had practically ceased 
to exist; but in 1864 a stimulus was given (owing to the war- 
time scarcity of labor) to a similar system of bringing numbers 
of Europeans here to work under contract, by a law * which 
provided that such contracts should be valid and enforce- 
able in the United States coiu-ts. This, it must be remem- 
bered, was before the passage of the thirteenth amendment. 
Employers took advantage of the law in order to bring over 



* Immigration Commission, Reports, Vol. XL, 191 1, p. 62. 
2 United States, Laws 1868, C. 38, Sec. 4. 

' See "Indentured Service," p. 41. 

* United States, Laws 1864, C. 246. 



foreign laborers. Companies were formed for the same pur- 
pose; and the American labor market was threatened with a 
huge oversupply of cheap foreign labor. In spite of agitation 
in Congress and feeling in the country, it was not until 1868 
that this act was repealed, nor until 1885 that the inducement 
of immigration was formally forbidden by law. 

The contract labor law of 1885 ^ forbade the assistance or 
encouragement of immigrants coming here under contract to 
work. The act applied solely to laborers, for those professions 
which send representatives abroad were expressly exempted, 
as were also domestic servants and skilled workmen in new 
industries, provided labor of the same kind could not be ob- 
tained otherwise. Individuals were allowed to assist friends 
and relatives to come to America. This successful reversal 
of policy from the act of 1864 was due in a large measure to 
the efforts of the Knights of Labor and the trade unions. 
It answered the demand of the working class as sl whole, and 
especially that part of it which was organized, for effective 
protection against the competition of the masses of immi- 
grants who were now entering the country. The number of 
immigrants, which had decreased during the 'seventies, rose 
to 457.257 in 1880, 669,431 in 1881, and 788,992 in 1882.2 
Another immigration act was passed in 1891, which had as 
one of its objects the prevention of induced immigration.^ 
The govenmient was beginning to make it more difficult for 
a man who had previously obtained work to come into the 
United States. Transportation companies were now for- 
bidden to solicit or encourage immigration, and the practice 
of issuing advertisements in foreign countries promising em- 
ployment here was prohibited. At the same time the efforts of 
Congress to make the contract labor law a real deterrent were 
met by a silent opposition from the courts, which continued 
to construe the law strictly and to treat it as of limited applica- 
tion until 1907, when the terms of the law itself were changed. 
^^ But during the 'eighties and 'nineties the change from the 
"old immigration" to the "new immigration" was taking 
place; that is, the great bulk of the people no longer came 

^ United States, Laws 1885, C. '64. 

^ Immigration Commission, Reports, Vol. Ill, IQII, p. 4. 

3 United States, Laws 1891, C. 551. 



72 



PRINCIPLES OF LABOR LEGISLATION 



r 



i i 



i 



It 



from Germany, the United Kingdom, and Scandinavia, but 
frcwn southern Italy, Austria-Hungary, Russia, and latterly 
Greece. These people had, in general, a lower standard of 
life than the Americans and the earlier immigrants. While 
it is true that in many cases where they replaced native labor 
this adjustment was favorable to the Ainericans, in that these 
were raised thereby to more responsible and better paid posi- 
tions, or else went farther west or southwest, as did the 
coal-miners, attracted by better wages, still it cannot be 
denied that the newer immigrants were as a rule willing to 
work for less wages, to endure harder conditions, and to lower 
the general plane of living of unskilled laborers. It is on 
accoimt of this displacement of American labor by immigrant 
labor, a phenomenon which has been at times emphasized to 
the point of exaggeration, that the working class has so eagerly 
desired the restriction of immigration; * and the contract labor 
laws were the first attempt to do this. It was not necessary 
to enforce the law against farm laborers, because from them 
no such competition was feared. 

A later revision of the contract labor law was made in 
the general immigration act of 19 17.* This time the scope 
of the words "contract laborer" was enlarged to include any 
one "induced, assisted, encouraged, or solicited" to immigrate 
by any kind of promise or agreement, express or implied, true 
or false, to find employment. The Immigration Commission 
of 191 1 said of even the less sweeping law of 1907 that "it is 
difficult to conceive how the letter of the law respecting the 
importation of contract laborers could be more stringent than 
at present"; and in consequence of this trend in the law the 
courts have been obliged to give up their attitude of considering 
as prohibited by the law only those transactions in which a 
contract could be proved. 

The cases on the subject bring out the increasing strict- 
ness of the law. In United States v. Edgar,' decided under 
the law of 1885, the prosecution of an employer who had im- 
ported labor from abroad failed, because no contract could 

* For a discussion of the economic effects of immigration from opposite 

J)oints of view, see J. W. Jenks and W. J. Lauck, T/ie Immigration Prob- 
em, and I. A. Hourwich, Immigration and Labor, 
' United States, Laws 191 6-1 91 7, C. 29. 
' United States v. Edtjar, i C. C. A. 49, 48 Fed. 91 (1891). 



INDIVIDUAL BARGAINING 



73 



be proved. In United States v. Gay * it was held that the 
law of 1 89 1 was intended to exclude only unskilled manual 
laborers. After the act of 1907, as already pointed out, these 
doctrines could no longer be held, and in 19 14 we had a case 
in which a fine of $1,000 was exacted for each of forty-five 
contract laborers brought across the Mexican border for the 
purpose of helping to construct a railway.^ 

That laws against induced immigration, although in force 
for thirty-five years, have done very little to protect the Ameri- 
can laboring man from the competition of immigrants is evi- 
dent from two facts: the enormous numbers of unskilled 
laborers who have since entered the United States, and the 
efforts that were constantly being made to secure other means, 
notably a literacy test, for creating a "labor protective tariff." ^ 
With regard to the first point, it may be mentioned that during 
the fiscal year ending June 30, 19 14, the latest before the war, 
the niunber of "laborers" who entered the United States was 
226,407, and the number of skilled workmen was 173,208.* 

In Australia a law ^ similar to the American, but less rigid, 
excludes persons seeking to enter the country on a contract 
of employment. The minister for external affairs may, how- 
ever, admit such an immigrant (a) if the contract is not made 
in contemplation of affecting an industrial dispute; (b) if 
the remuneration and other conditions of employment are as 
advantageous as those current for workers of the same class 
at the place where the contract is to be performed. A further 
clause, which applies only to persons not British subjects or 
their descendants, and therefore to very few emigrants to 
Australia, provides that there must be difficulty in the em- 
ployer's obtaining within the Commonwealth a worker of equal 

» United States v. Gay, 37 C. C. A. 46, 95 Fed. 226 (1899). 

* Grant Bros. Construction Co. v. U. S., 232 U. S. 647, 34 Sup. Ct. 452 
(1914). 

' In the effort to secure the desired protection by another method, the 
people of Arizona in 1914 enacted by initiative and referendum a law 
requiring employers of more than five persons to engage at least 80 per 
cent, qualified electors or citizens. This statute was declared uncon- 
stitutional by the United States Supreme Court as denying the equal 
protection of the laws. (Truax v. Raich, 239 U. S. 33, 36 Sup. Ct. 7 

* Commissioner General of Immigration, Report, 1914, pp. 40. 41. 
' Act No. 19 of 1905. :^ t» f ^ ^ , t 



74 PRINCIPLES OF LABOR LEGISLATION 

skill and efficiency. The states belonging to the Common- 
wealth offer assisted passages to agricultural workers and to 
domestic servants, whose ranks are by no means overcrowded.* 

In the Union of South Africa, the government endeavors 
to maintain good conditions in the labor market by preventing 
unemployment and directly assuring itself that the competi- 
tion of every immigrant is "fair." Every immigrant of Euro- 
pean descent belonging to the working class is obliged to have 
a certificate, stating that he has been engaged to serve, im- 
mediately upon his arrival, an employer of repute at adequate 
wages, for a period of time to be fixed in said conditions, but 
not to be less than one year.^ The terms of this law are ex- 
actly the opposite of the American provisions against induced 
labor; yet the idea of protecting the laborer from competition 
with an imrnigrant of lower standards is common to both. 

b. Exclusion of Orientals. The danger to the laborer from 
the competition of European immigrants may be lessened 
and gradually done away with as these become Americanized. 
Trade unionism, especially, is a force which is giving the im- 
migrant the same standards as the American. In the case 
of the Oriental races, however, this "happy ending" to the 
story is not to be expected. Individual Chinese, Japanese, 
and Hindus may settle down to lead Western lives and adopt 
Western ideas; but the great mass of their countrymen who 
emigrate do so without any desire to change their ways of 
living. It is a well-known fact that these ways are much more 
economical than those of an American or European, and that 
therefore an Oriental can accept wages which to a white man 
would mean starvation. No doubt race feeling enters to 
some extent into the composition of laws excluding Chinese, 
Japanese, and Hindus; but more deep-lying is the fear of the 
competitive worker. This is shown by the fact that the 
employing classes welcome Orientals, whom they find efficient, 
polite, and contented. Miss Eaves says of the early Cali- 
fomian opposition to the Chinese: 

The legislation on Oriental labor sprang from the people. . . . 
The laws . . . were the product of the actual experiences— sometimes 

* Commonwealth of Australia, Official Yearbook, 1914, p. 1027. 
2 South Africa, Laws 1913, No. 22 (immigrants' regulation act). 



INDIVIDUAL BARGAINING 



75 



of the race prejudices — of those in the humblest ranks of society. 
For thirty years the working people persistently made known their 
needs, winning at last a practically unanimous support in the state, so 
that all classes united to tuge the tardy federal legislation for exclusion.* 

The report of the federal Joint Special Committee to In- 
vestigate Chinese Immigration, which was published in 1877, 
is filled with complaints against the Chinese on the part of 
American workingmen who asserted that they could not com- 
pete with Chinese. A point very often made was that the 
average American workman is a married man with a family, 
while Chinamen would come to California alone and expect 
to earn only what would keep a single man. Others said that 
Chinese labor was less efficient than white labor.^ One wit- 
ness asserted that he used to earn from $20 to $21 a week at 
broom-making, but that in competition with the Chinese he 
could make only $14.89.' 

It was this agitation by the people on the Pacific coast, who 
had learned to fear the industrial competition of the Chinese, 
that led to federal legislation and finally to the exclusion of 
the Chinese laborers. The Burlingame Treaty of 1868 had 
settled nothing, for it merely proclaimed the right of the 
Chinese to settle where they would, while denying them the 
right of naturalization.** Another treaty, concluded in 1880, 
gave the American government the right "to regulate, limit, 
or suspend" Chinese immigration, but not absolutely to pro- 
hibit it. Two years later the exclusion of Chinese laborers 
went into effect, when an act was passed forbidding them to 
enter the country for the next ten years. ^ This policy has 
been kept up ever since in laws and treaties which have 
gradually grown more strict. On the same principle Jap- 
anese laborers who are not coming to the United States 
in order "to resimie a formerly acquired domicile, to join a 
parent, wife, or children residing there, or to assimie active 
control of an already possessed interest in a farming enter- 

* Lucile Eaves, History of California Labor Legislation, 1910, p. 115. 

* Joint Special Committee to Investigate Chinese Immigration, Report, 
pp. 346, 347, 44th Congress, 2d Session, Senate Report No. 689, 1877. 

' Ibid., p. 360. 

* Immigration Commission, Reports, Vol. XXXIX, 191 1, p. 69. 
^ United States, Laws 1882, C. 126. 



r6 



ji 



ii 



PRINCIPLES OF LABOR LEGISLATION 



prise in this country," are refused passports by the laoane.^ 

'"lTBriti;h" Tr'^"^^ ^'"^ ^ treat^^agreement ^f x" " 
Ihe Bntish self-governing colonies have had a similar el 

practically the same means. Canada excludes the Chinese 
laborers by making them pay a head tax of $500 • thflapanese 
by an agreement with the government of that countrrthat 

and r; H r T -^T"^^^ "^^ '^ '-''' Canada anLSy' 
and the Hindus, by a head tax of $200 and the reouirement 
that they shall come by a "continuous journey '' fromT^^^^ 

admission (New Zealand) in a European lan^agT^ 
c. r/.. L./.rac->. Test. The British self-goveniing colonies 

migration. In this country a long struggle was made to aoolv 

llp^TTl^T ' '''' "' ^^^^ ^^"^' ----ding in xp"; Sr 
the Presiden lal veto which had three times defeated earlier 
Congressional action in this direction. 

First introduced unsuccessfully in Congress in iRno fh. 
pnnciple of the literacy test was%mbodi J ba bil of 'zsj! 
and survived through numerous modifications until wo ySs 

he^bl 1 :iTf ''^ ?^^^ '^^ ^-^^-^ The intentioro 

classef hTni ^t^ ''''\^°' °"^>^ '^" ^"^^"^I and pauper 
dasses, but also the southern and eastern Europeans ver^ 
many of whom were illiterate Prp<:iHPTif ni^, ^"P^ans, very 
vetopH it 00 K • "''^^|ate -t'resident Cleveland, however, 
vetoed it as being un-American and illiberal and also ^^ 
unhkely to have any good effect on the prevaninrdepressio^ 
or on violence in labor troubles and racial degeneration ThP 
House passed the bill over the President's ve™ a majority 
of 193 to S7, but no action was taken in the Senate^nd"£ 
bill was consequently not enacted into law 

the T.rlf '- f '^ '""^'^ ^ ^^'"^^-y t-^t ^^ niade under 
Snatein f ™''?'"- ^ ^^" "^ ^"^^^^^--^ into the 
^"^^^ ^" ^911. contammg a clause which was practically 

' United States, Laws 1907, C. 1134. 

> iS-T^^f '""^ Commission, Reports, Vol. XL n rq 
»/^^., Abstracts of Reports, Vol II oo 6^ k?; '^* 
* Itnd., Reports, Vol. :j6cxix, p. 47.^^' ^^' ^^7- 



INDIVIDUAL BARGAINING 77 

copied from the bill mentioned before.* It was passed by the 
House and Senate, but President Taft vetoed it, February 14, 
1 9 13. The Senate thereupon passed the bill again, but in 
the House the vote fell short of the required two-thirds ma- 
jority and the bill therefore had to drop.2 

Another bill including a literacy test of the usual type 
was introduced in the House in 1913.3 The House and 
Senate voted favorably on this bill and it went to President 
Wilson on January 16, 191 5. He returned the bill with his 
veto, giving, as his reason, that this bill embodied a radical 
departure from the traditional policy of the country, in almost 
entirely removing the right of political asylum and in ex- 
cluding those who have missed the opportunity of education, 
without regard to their character or capacity. Moreover, 
he did not believe that the bill represented the will of the 
people, and for these reasons he refused to sign it.* The 
House again could not raise a two-thirds majority in favor 
of the bill, and so, like its predecessors, it came to nothing.^ 

Finally in 19 16 an immigration measure containing the 
literacy test was again introduced and passed by Congress. 
It was again vetoed by President Wilson,« but this time the 
necessary two-thirds majority was secured in both Houses to 
adopt it over his veto, and it became a law on February 5, 
1917-^ Persons physically capable of reading, and over six- 
teen years of age, are excluded if they cannot read some lan- 
guage, except near relatives of admissible aliens and those 
seeking entrance to escape religious persecution. During the 
first fiscal year after its going into effect, the reading test 
served to exclude 1,598 immigrants.^ However, the sharp 
drop of immigration due to the war— 110,618 entering in the 
year ending June 30, 1918, as compared with 1,403,081 in the 
year ending June 30, 19 14— indicates that the exclusion of 
new-comers will be a much less pressing question for a number 

2 ^^F\'r'^?^^r^'^'''^^ V°^- ^LVII, 191 1, p. 3669. 
» /fc^*' X° • ?^^^' '913. p. 3429. 

* Ibtd., Vol. L, 1913, p. 2013. 

63d Congress, 3d Session, H. R. Document No. 1527. 

* Congressional Record, Vol. LII, 191 5, p. 3078. 

64th Congress, 2d Session, H. R. Document No. 200-5. 

United States, Laws 1916-1917, C. 29. 

Commissioner General of Inmiigration, Report, 19 18 p 23 



78 PRINCIPLES OF LABOR LEGISLATION 

of years. In November, 1919, the first official International 
Labor Conference called under the League of Nations, in 
session at Washington, adopted as part of its proposed pro- 
gram on unemployment the recommendation that "recruiting 
of bodies of workers in one country with a view to their em- 
ployment in another country should be permitted only by 
mutual agreement between the countries concerned and after 
consultation with employers and workers in each coimtry in 
the industries concerned." * 

(2) Protection against Convict Labor 

Varying estimates have been made at different times of 
the number of convicts engaged in productive industry in the 
United States. Perhaps one of the best estimates was that 
of 5i,cxxD made by the Commissioner of Labor in 1905.^ The 
value of goods sold within and outside the state in which the 
labor was performed amounted to $27,000,000 in the same 
year .3 The industries mainly affected by the competition of 
convict labor are the manufacture of boots and shoes, cloth- 
ing, especially workmen's shirts and overalls, furniture, 
brooms and brushes, stove hollow ware and stoves, harness 
and whips, binder twine, cooperage (in Chicago), farm wagons, 
and stone work. Wages paid to convicts by private contractors 
who hire them from the state are, of course, very low. The 
maximum amount reached under the contract system is about 
75 cents a day. 

The problem raised by permitting convicts' work to be sold 
in the open market in competition with the product of free 
labor has been expressed as follows: 

The two investigations (of the Bureau of Labor, 1885 and 1895) 
showed that the convict product as a whole was very small when 
compared with the entire product of free labor in the United States. 
But the employers of free labor and their workmen unite in affirming 
that when any convict-made product is placed in competition with 
the produc t of free labor the market becomes demoralized, even a 

» American Labor Legislation Review, Vol. IX, No. 4, December, iqiq. 
PP- 533» 534. 

'United States Commissioner of Labor, Twentieth Annual Report, 

^904. p. I^. 3 Jl^^^^ pp, ^y^^ ^75^ 



INDIVIDUAL BARGAINING 



79 



* 



small sale affecting prices far out of proportion to the amount of 
the sale. . . . Every state objects to being made the market for con- 
vict-made goods produced in other states.* 

The prisons do not stand in the normal relation of producers 
to the commodity market; they go on working, regardless of 
the fluctuations of business; they can undersell any com- 
petitor, for they do not have to meet the usual costs of pro- 
duction and in the last resort they can always fall back on 
the taxes. Manufacturers sometimes assert that they do not 
feel the competition of convict labor except in times of de- 
pression.* 

The employer of "free labor" can meet this competition 
in several ways. He may adulterate or otherwise lov/er the 
quality of his goods so as to lower his cost of production, or 
he may give up the particular branch of his trade in which 
the competition of convict labor is felt. Instances can, how- 
ever, be given of whole industries which have been practically 
absorbed by convict labor in certain localities, such as the 
cooperage industry in Chicago during the 'eighties. 

The problem of convict-labor competition takes an even 
more serious aspect when it is considered in respect to inter- 
state commerce. Pressure brought to bear on the govern- 
ment of any one particular state is often successful in getting 
a law passed forbidding the sale of convict-made goods within 
that state; but this only means that convict-made products 
from other states are brought in and sold there. In fact, 
the publicity given to the system of convict contract labor 
when a bill to abolish it is being discussed is apt to attract 
attention to the fact that a new market will be opened for the 
convict-made goods of other states. It has been estimated 
that only 34.7 per cent, of convict-made goods are sold within 
the state of origin, and 65.3 per cent, in other states.^ 

Many of the states have laws designed to put some restraint 
on competition between convict and free labor. No law has, 
however, yet been enacted approaching in simplicity a pro- 



* United States Commissioner of Labor, Twentieth Annual Report, 
pp. II, 23. 

* Ibid., p. 59 (statement of a Minnesota shoe manufacturer). 
' Ibid., p. 497. 




8o PRINCIPLES OF LABOR LEGISLATION 

posal made in the 63d Congress, that the convict should be 
put to remunerative work, charged with his upkeep, and have 
his labor credited to him; that he should in fact be put on 
the same competitive footing as an ordinary laborer. ^ The 
laws bearing directly on the subject of competition are for 
the most part of recent origin and may be divided into three 
main classes: (i) The general statement that convicts are 
not to be employed where their work conflicts with free labor 
(as in Illinois, New Jersey, Minnesota) ; (2) the prohibition 
of convict labor in certain forms of industry — e. g., the manu- 
facture of tin cans for fruit-packing — (as in Iowa, Maryland, 
Oregon, Wyoming)— Washington has a provision the :;everse 
of this, by which it refuses to allow its convicts to manufacture 
anything save jute fabrics and bricks, while Arizona provides 
that convicts shall be set to work on streets and highways, 
when they do not compete with free labor; (3) the distribu- 
tion of convicts among diversified lines of industry, sometimes 
coupled with the limitation of the number to be employed in 
a given industry (as in Indiana, Massachusetts, Nebraska, 
Ohio, Pennsylvania). A few other states have adopted dif- 
ferent plans. California has a constitutional provision for- 
bidding the sale of convict-made goods, unless specifically 
sanctioned by law. Massachusetts, in addition to the pro- 
vision mentioned above, stipulates that convict-made goods 
must be sold at not less than wholesale prices. The con- 
stitution of Michigan forbids the teaching of a trade to 
convicts, excepting only the manufacture of such articles as 
are mainly imported into the state. More recently New Jer- 
sey enacted the provision that prisoners are not to be used 
on public work to replace free laborers who are locked out or 
on strike. 2 

Indirect methods of legislating against the competition of 
convict labor are laws providing that convict-made goods shall 
be labeled, as in Pennsylvania, Montana, and other states, 
or that dealers in such goods shall have a license, as in New 
York. The most effective kind of law is probably the pro- 
vision that all goods manufactured in prisons shall be for the 
use of the state (the "state use" system). Backed by satis- 

1 Congressional Record, Vol. LI, 1914, p. 4294. 

2 New Jersey, Laws 19 18, C. 147. 






INDIVIDUAL BARGAINING 81 

factory experience under a federal executive order during the 
wa?, the movement is growing to employ convicts exclusively 
on the state use system, at wages based on the prevailing 
rate in the locality. 

Federal legislation has been attempted for the last thirty 
years, but nothing has as yet been accomplished. In the 
63 d Congress the proposal was made to subject to the law 
of a state convict-made goods imported into it,i which, it was 
hoped, would check interstate commerce in these goods. 
The opinion has often been expressed that, if such a law 
were enacted, the competition of convict labor with free 
labor would cease. Up to the present, however, the attempts 
to get such legislation enacted have met with no success. 

5. Legal Aid and Industrial Courts 

^ We have seen hov/ modern legislation has attempted to 
give to the individual wage-earner increasing privileges and 
to place him more nearly on an equality with his employer. 
Yet these privileges are available to him only so far as the 
state actually enforces them. We shall see that, in the case 
of factory legislation,^ the early statutes assumed that the 
employee would initiate proceedings in court, with the aid 
of the ordinary officers of law, to enforce the safety and health 
laws. Not until many years had passed did the state provide 
special police, the factory inspectors, to relieve the laborer 
01 this impossible obligation. So in these more fundamental 
rights growing out of the labor contract the state leaves to 
the laborer the duty of realizing upon them through the 
ordinary means of prosecution in court. 

But poverty, ignorance, and the technicalities of law often 
combine to set the remedies beyond his reach. "From birth 
to death," says a report of the New York Legal Aid Society,'^ 
''the poor man is the prey of a host of petty swindlers He 
IS educated to believe that justice is free, and he finds that, 
to get it, he must pay a lawyer a price he cannot afford." To 
realize ju stice he must appeal to charity. Attorneys, in 

» 63d Congress, 2d Session, H. R. 5601. 

See Chapter IX, "Administration." 
» Thirty-eighth Annual Report, 1913, p. 23. 



I 



82 PRINCIPLES OF LABOR LEGISLATION 

countless individual cases, have given their aid without price, 
but it cannot be expected that they can meet the need with- 
out neglecting their regular clients. Yet without their aid the 
chance of the laborer's success in the legal battle is negligible. 

The reports of legal aid societies are filled with cases of in- 
justice that call for an attorney. Wages are withheld. Pawn- 
brokers and "loan sharks" command usurious rates of interest 
on small loans, and compel their victims to sign papers, such 
as chattel mortgages and wage assignments, of whose contents 
they are ignorant. Wage exemption laws are nullified by 
garnishment proceedings brought against the employer to at- 
tach wages not yet paid. The laborer must then have an 
attorney to secure the release of his wages, and he may lose 
his position, for employers often make it a rule to discharge 
employees whose wages are garnisheed. Thus, even the threat 
of garnishment may serve, not only to nullify his exemptions, 
but to force him to pay unjust claims out of wages not exempt. 
Foreigners are a class especially exposed to fraud. The 
abuses of peonage, vagrancy laws, and the padrone system 
have already been mentioned.* 

Against these invasions of their legal rights wage-earners 
are for the most part helpless to defend themselves. The 
majority of their grievances involve small amounts which do 
not justify the employment of a lawyer. Besides, there are 
the initial court costs, such as fees for filing, fees for serving 
stimmonses and subpoenas and for attaching property, and 
fees to clerks of court in contested cases. To the man with a 
small claim the remedy may cost more than the result. 

(i) Private and Public Legal Aid 

To remedy tnese abuses, pnvate charity has fotmd a large 
field. Legal aid societies have been organized in some forty 
American cities. Their object is "to render legal aid and 
assistance gratuitously to all who may appear worthy thereof, 
and who from poverty are unable to procure it." ^ The first 
was started by certain German merchants in New York in 

* See "Peonage," p. 37; "Padrone System," p. 46. 
'Legal Aid Society of Philadelphia, Thirteenth Annual Report, 1906, 
Constitution, Art. I, Sec. 2. 



INDIVIDUAL BARGAINING 



83 



1876 to help poor German immigrants, and was called the 
German Law Protection Society, but soon extended its aid 
to others. In 1890 Arthur von Briesen, called the "father of 
the legal aid society movement," became president and the 
name was changed to the Legal Aid Society of New York. 
The society has confined its work to wage-earners, but with- 
out regard to nationality, race, or religion. The applicant 
rnust be one whose claim is too small or who is too poor to 
hire an attorney, a poor man being defined as one whose in- 
come may be just sufficient to maintain him, but not sufficient 
for extraordinary demands. It is the aim of the society to 
cooperate with and not to compete with other lawyers. Its 
attorneys are under agreement to have no other legal business 
and they are not permitted to recommend any particular 
attorney to applicants whom the society may reject. A case 
to be accepted must be unquestionably meritorious, and this 
is ascertained by investigation and an impartial hearing of 
both sides. Finally, the society makes every effort to settle 
cases out of court, and, up to the moment of trial, if a reason- 
able offer of settlement is made, advises its client to accept. 
The policy is to discourage litigation in such a way as to pro- 
tect the rights of all. In 1918 there were only 1,656 appear- 
ances at court or before other tribunals in the course of 38,287 
cases handled by the society.^ 

From New York, legal aid societies have spread throughout 
the United States and Europe. In the United States they are 
generally unincorporated voluntary associations, conducted, 
with one exception,^ by private individuals. In 19 11 the first 
national conference of legal aid societies was held in Pitts- 
burgh, thirteen of the forty organizations in the country being 
represented. The second was held in New York in 191 2, with 
delegates from sixteen societies. At this time the National 
Association of Legal Aid Societies was established, the objects 
being to give publicity to the work, to bring about coopera- 
tion and increased efficiency, and to encourage the formation 
of new societies.^ 



' New York Legal Aid Society, Forty-third Annual Report, 1018 00 
4» 49, 50. ' » ^ . HF. 

^ Kansas City, Mo. 
' Chicago Legal Aid Society, Bulletin No. 2, 1912-1913, p. 3. 



'I 



84 



PRINCIPLES OF LABOR LEGISLATION 



The legal aid movement has flourished especially in Ger- 
many. In 191 1, there were 1,016 societies^ which in 19 10 
had 1,546,971 cases. In 1913, they held a convention at 
Nuremberg, which was attended by delegates from the United 
States, Denmark, Holland, Belgiiun, Austria, and Switzerland. 
In London, the "Poor Man's Lawyer's Association," with 
"centers" in settlements and missions, gives gratuitous legal 
advice to persons who cannot afford a solicitor, but does not 
furnish assistance in court.^ It is sometimes objected that 
legal aid will encourage litigation, but the record of cases 
settled out of court by legal aid societies does not support 
this view. 

So far legal aid is almost entirely a private enterprise, and, 
excellent as has been the work, it is restricted to a few of the 
larger cities. Even there the work has been seriously ham- 
pered by lack of funds, a handicap repeatedly mentioned in 
the reports. There is, accordingly, an increasing demand that 
legal aid be made a function of government and thus put 
within the reach of all. Several attempts in this direction 
have been made in the United States. Kansas City, Mo., has 
the distinction of possessing the only municipal free legal aid 
bureau in the United States. It was organized as a depart- 
ment under the board of public welfare, in August, 1910.^ 
Los Angeles County, Calif., was the first to establish the office 
of public defender,* the duties in civil cases being the prosecu- 
tion of actions for the collection of wages and other demands 
of persons who cannot afford counsel, in cases where the 
sum involved does not exceed $100. This officer also de- 
fends such persons in civil litigation, when they are being 
unjustly harassed. Costs are paid from the county treasury. 
Similar officers were within the next few years appointed in 
half a dozen other cities, including Portland, Ore., and Minne- 
apolis, Minn., while elsewhere, as in New York City, com- 
mittees of "voluntary defenders" sprang up. Though work 
of this nature is efficacious in obtaining justice and reducing 

*W. E. Walz, "Legal Aid Societies, Their Nature, History, Scope, 
Methods, and Results, The Green Bag, Vol. XXVI, 1914, p. loi. 

2 Arthur Blott, "Legal Dispensaries in London," Legal Aid Review, 
Vol. IV, 1906, No. 3. 

' See Board of Public Welfare, Kansas City, Mo., Reports. 

* Los Angeles County Charter, Sec. 23. Became effective July i, 1913. 



INDIVIDUAL BARGAINING 85 

its expense for the poor man, the question of the law's delay 
has not been solved. The public defender does not have 
power to hear and determine questions involving the payment 
of wages. His findings might be made final on all questions 
of fact and, when the findings are filed in court, judgment 
might be entered accordingly.^ The public defender would thus 
have the functions of an industrial court as later described 

A provision for the collection of wages in California is the 
payment of wages act of 191 1. It provides for immediate 
payment of wages due to a discharged employee and for pay- 
ment in five days to an employee not having a definite con- 
tract who quits or resigns.^ AH other wages fall due at least 
once a month, and must not be withheld more than fifteen 
days after that time. In November, 1914, the act was de- 
clared unconstitutional by a district court on the ground that 
in effect it permitted imprisonment for debt, which the state 
constitution prohibits except in case of fraud.^ Although the 
statute did not provide imprisonment as a penalty and was 
silent as to the process by which the court might obtain juris- 
diction of the person of the offender, in the test case arrest 
and detention pending a hearing were the means used Ac- 
cordingly, in 191S, an amendment to the payment of wages 
law was passed.^ Instead of the eariier $500 fine for violation 
If an employer fails to pay in full within five days after the 
same are due, the wages of an employee who leaves or is dis- 
charged are to continue at the same rate until paid, or until 
action is commenced, but in no case after thirty days No 
employee «vho refuses or avoids payment is entitled to benefit 
under the act for such time as he avoids payment Wilful 
refusal to pay for labor, with intent to secure a discount or 
to harass or defraud, constitutes a misdemeanor. The bureau 
of labor statistics enforces the act. During the year ending 
June 30, 1918, no fewer than 8,058 claims for wages were filed 
^"^ 4>ii8 claims were collected, amounting to $120,841.20.5 

» Recommended by the public defender in a letter to the Milwaukee 
Bar Assoaation, March, 1914. -^viuwauKee 

'California, Laws 191 1, C. 92. 

\ ^"".P/"'^. ^7^«' On Habeas Corpus, Crim. 560, November 2x iqu 
• Cahfomia, Laws 1915, C. 142. ^* *y*4' 

I9i?-i9lTp^'i8.'^^'' ""^ ^"^^ Statistics, EighUenth Biennial Report, 







♦ . ^ 



I 



86 



PRINCIPLES OF LABOR LEGISLATION 



The majority of cases are settled within three days of filing 
the claim. A marked decrease during 191 7 and 19 18 in the 
number of claims filed and the amount collected is interpreted 
by the bureau as an indication of its effectiveness, employers 
avoiding intervention by adjusting differences before they are 
taken before the authorities. 

In 19 10, following the recommendation of a state immigra- 
tion commission appointed to investigate the condition of 
aliens in the state, the legislature of New York created a 
bureau of industries and immigration subordinate to the de- 
partment of labor, whose object was to give newly arrived im- 
migrants a fair start. This was to be done by securing to 
aliens a hearing for complaints in their own language, the 
bureau to act as mediator in securing the enforcement of 
existing laws to prevent exploitation. The chief investigator 
brings the parties together at a hearing and tries to adjust 
the differences. If he fails, a civil case is turned over to the 
Legal Aid Society. 

This system of state legal aid for immigrants was extended 
to all wage-earners by a section of the New York industrial 
commission law of March, 191 5: "The commission shall ren- 
der all aid and assistance necessary for the enforcement of 
any claim by an employee against his employer, which the 
commission finds reasonable and just and for the protection 
of employees from frauds, extortions, exploitation, or other 
improper practices on the part of any person, public or private; 
and shall investigate such cases for the purpose of presenting 
the facts to the proper authorities and of inducing action 
thereon by the various agencies of the state possessing the 
requisite jurisdiction." ^ Under this act, the state industrial 
commission is made an agency for providing the services of a 
lawyer to wage-earners unable to pay for them. It lacks, how- 
ever, a provision making the findings conclusive in court 
proceedings. 

(2) Industrial Courts 

In Europe, a different type of legal aid has been evolved, 
taking the place, not of the lawyer, but of the judge. This is 



I 



INDIVIDUAL BARGAINING 



87 



1 New York, Laws 1915, C. 674, Sec. 526. 



the industrial court, or conseil de prud'hommes. Industrial 
courts are special courts for the settlement of disputes arising 
out of labor contracts between employers and employees, and 
their purpose is "to settle by conciliation whenever possible 
and by legal judgment when conciliation fails, but in any 
event cheaply, quickly, and by means of a court composed 
in part or in whole of elected representatives of the two 
classes, all individual legal cases which arise from the re- 
lations of employer and employed." » The first industrial 
court was founded at Lyons, France, in 1806, for the silk 
mdustry. The law creating the Lyons court provided that 
similar courts might be established in all the factory cities 
of France, and accordingly their number has increased steadily 
When the left bank of the Rhine in 18 15, and Alsace-Lorraine 
in 187 1, became German territory, the industrial courts were 
retained, and in 1890 a general law provided for their estab- 
lishment throughout the empire. Industrial courts similar to 
the French were introduced into Belgium in 1859, while 
Austria followed in 1869, Italy in 1893, and Spain in 1908. 
In Switzeriand, Geneva was the first canton to take up the 
idea, creating an industrial court on the French model in 
1882. In 19 10, only seven of the Swiss cantons lacked legis- 
lation of this character. 

There are. in general, three types of industrial courts: 
(i) The French, in which only employers and workers are rep- 
resented, and the number of members is even; (2) the Ger- 
man, in which the president is neither an employer nor a 
worker, and the number of members is odd; (3) the Swiss, 
which is an adaptation of the ordinary court, with the 
addition of special "assessors," or advisers, to the judge.2 
In all three types the employers and workmen are equally 
represented. 

With respect to jurisdiction, a labor contract of some kind 
is essential, but the idea is interpreted to cover any relation- 
ship betwe en wage-givers and wage-receivers. The great ma- 

^ » United vStates Bureau of Labor, Bulletin No. 98, January 1012- 

industrial Courts in France, Germany, and Switzerland" Helen l' 

bumner, p. 273. » i>. 

2 Two cantons have courts based on the French model (Geneva and 

i?A. 1! ^^^ ^°^ ^^® ^^^ German type (Lucerne, Berne, St. Gall Neu- 
cnatel). t ^^^ 



Il 



IT" 

I 




8S 



PRINCIPLES OF LABOR LEGISLATION 



jority of cases are for wages due,* but discharge without notice 
is also a frequent cause of complaint. By far the greater 
number of complaints are made by workers. In 1908, in 
Germany as a whole, 5,672 cases were brought by employers 
and 106,269 by workers. Most of the complaints are for 
small simis. 

Conciliation being the chief object of industrial courts, 
the procedure is a radical departure from that of the ordi- 
nary court. Personal appearance of the parties is required, 
except for a good excuse, as illness or absence from the city. 
In GeiTnany, parties may be represented only by persons in 
the industry, but in France lawyers arc allowed to be present, 
either to represent or assist the parties.^ Lawyers are per- 
mitted in Spain also, but not in Basel, Zurich, or Geneva. 
The proceedings are much less formal than in an ordinary 
court, and the president takes an active part. Preliminary 
hearing for the purpose of conciliation before a section of the 
court is provided for in France and Germany. More than 
half the cases are settled by conciliation, and, as a large num- 
ber are not contested, or are settled by default, only a small 
percentage call for formal judgment.^ 

The salient advantages of the industrial courts are rapidity 
and cheapness. Cases arc set for as early hearing as possible, 
after complaint, and only necessary delays are permitted. 
In France, cases must be settled in four months, and in Ger- 
many in 1908 only 1.5 per cent, of cases brought to final judg- 
ment lasted over three months. Expenses exceeding the fees 
collected are met by the municipalities over which the court 
has jurisdiction, or, in the case of courts with wider jurisdic- 
tion, by the state. In such cases there are no fees; in others 
the fees are low. Members of the courts are compensated by 
fees or salaries, the method varying within the country. In 
Gennany the president receives a salary, and the representa- 
tives of employers and employees receive fees for time in court. 



1 In Berlin in 1908 more than one-half the complaints were for wages 
and a third about illegal discharge. • r» • 

2 In practice lawyers appear before the board of judg;ment in Pans 
in only 10 per cent, of cases, and before the board of conciliation in only 
5 per cent. . 

3 In 1908 only 17 per cent, of cases in Paris and 9 per cent, in Berlin 
required formal judgment. 



INDIVIDUAL BARGAINING 



89 



Wherever established, industrial courts are held indispen- 
sable, the fact that no dispute is too insignificant for them being 
regarded as a special advantage. They are, however, much 
more successful with small-scale production than with the 
factory system, the reasons being that in the latter case 
standardization of conditions obviates many disputes, and 
also that employees fear blacklisting if they bring suit. 

No such institution exists in English-speaking countries. In 
Great Britain the arbitration act of 1824 was designed to 
cover individual disputes, but the procedure was too intri- 
cate and costly ever to be applied. The "councils of con- 
ciliation" act of 1867 permitted industrial courts like the 
French, but no true judicial tribunal was ever created under 
it.i In the United States, a Pennsylvania law, enacted in 
1883, attempted to establish a sort of industrial court, but 
none was ever created and ten years later the law was re- 
pealed. The constitutions of New York and a few other 
states contain provisions for courts of voluntary arbitration, 
but no courts were ever established. 

A few attempts have, however, been made, along quite 
different lines. One of these is the Conciliation Court of 
Cleveland, Ohio. It grew out of a provision in the municipal 
court act, designating a clerk to assist persons unable to hire 
a lawyer in preparing and filing papers, and, if possible, to 
bring about a settlement. An experienced man was selected 
by the chief justice, and he often acted successfully as a 
mediator. In 19 12, 1,200 cases were thus settled out of 
court. All services were free. Since March, 19 13, a concili- 
ation branch of the court has been in operation. The fee is 
usually 25 cents, never more than 45 cents, and all wirits are 
served by registered mail. Lawyers are not allowed to repre- 
sent the parties, and no set procedure is required. Each 
party is allowed to state his case in his own way. When 
both sides have been heard, the judge must seek to effect an 
amicable adjustment of the differences between the parties. ^ 
Ordinarily , he obtains their consent that he shall adjust the 

' See also "Mediation by Government," p. 125. The above descrip- 
tion applies to industrial courts in their relation to the individual bargain. 
In some cases they also deal with the collective bargain. 

2R. C. Moley, "Justice through Common Sense," The Survey Oct 
31, 1914, p. lOI. 



V 



II 



tl 



i^ 






90 



PRINCIPLES OF LABOR LEGISLATION 



issue himself. The Cleveland court differs from the European 
industrial courts in that neither employers nor workmen are 
represented on the bench, the judge is not elected by the two 
classes, and the court does not confine itself to disputes arising 
out of the labor contract. It resembles them in that it is an 
authoritative tribunal, instead of being merely a private 
society, like the legal aid agencies of the United States. 

To what extent it would be possible to apply the European 
industrial court system in the United States is as yet an open 
question. People have not awakened to the need, and they 
are not prepared for such a system by habits of organization 
and joint action of interests. It is improbable that industrial 
courts would be created generally by local initiative, as in 
France, and even if the system were made mandatory by the 
state government, as in Germany, it would require a state 
agency to guide local governments in starting them. It is 
possible that the California wage payment law and the New 
York industrial commission law, above referred to, may lead 
to state and local advisory boards of employers and employees 
to assist the state authorities in executing the laws, and 
that, eventually, through the enlightenment of public opinion 
and through practice in cooperation between employers and 
employees,^ the industrial court may be successfully modified 
and adapted to American conditions. 



» See Chapter IX, "Administration." 



CHAPTER III 

COLLECTIVE BARGAINING 

Collective bargaining dates back as far as individual bar- 
gaining. Its first examples are town charters and merchant 
gilds. The townspeople through a collective contract secured 
certain rights from the king in return for a money payment. 
Among these rights none was more valuable than that of the 
doctrine "City air makes free." If a serf had been in a free 
city for a year, he became a free man. Freedom was estab- 
lished through collective bargaining. Without freedom there 
can be no individual contracts. Historically, individual and 
collective bargaining have been interdependent; the one has 
been necessary to maintain the other. 

I. The Law of Conspiracy 

Yet collective bargaining for a long time was viewed with 
suspicion. All associations were treated as conspiracies. They 
were much more powerful than individuals, and hence were 
considered dangerous. Moreover, collective bargaining im- 
plies a restriction of the freedom to make individual bargains. 
To bargain collectively there must be a contract or an agree- 
ment between the members of the association that each shall 
give up his right to make an individual contract, and shall 
either make his contracts only as the majority decides or shall 
permit the agents elected by the majority to make his con- 
tracts for him. In order to enforce such bargains the asso- 
ciation must have full disciplinary powers and must be al- 
lowed to detennine who shall be admitted to membership. 
Non-members do not share in the benefits of the collective 
bargain; in fact, they are often injured thereby. Collective 
bargaining seriously restricts the freedom of both members 
and non-members to make individual bargains. 



i 






»i 



92 PRINCIPLES OF LABOR LEGISLATION 

(i) Origins of Collective Bargaining 

Collective action was permitted in early law only under 
grant of a special charter from the king. Thus, the king 
granted charters to free citizens, and to merchant and craft 
gilds. Armed with a charter, the association might not be 
prosecuted as a conspiracy, and was conceded the great privi- 
leges of acting as a unit and continuous existence through 
the right of succession. 

Of these early associations the craft gilds were the nearest 
approach to the trade unions of to-day; yet their functions 
were very different. They were composed of three classes: 
the masters, the journeymen, and the apprentices. The 
masters and the journeymen worked side by side, with the 
same tools. It was easy for an apprentice to become first a 
journeyman, then a master. Hence the relations of the mas- 
ters to the journeymen and apprentices received but little 
attention in the charters which created gilds. The wage 
bargain which the master made with the journeyman and the 
apprentice was as yet not a matter of public concern. The 
public was interested primarily in the other bargaining func- 
tion of the masters; their merchant function, the making of 
the price bargain with consumers. The consumers dominated 
the government; and it was their concern to prevent extor- 
tionate prices and the substitution of "bad ware." ^ 

With the gradual expansion of markets, the merchants 
gained recognition in society. Charters were granted to the 
merchant adventurers who risked their capital in foreign 
enterprises, and patents of monopoly were granted to mer- 
chants in the domestic trade. Later came the special charters 
to banks, canal, turnpike, and railway companies and other 
corporations. Thus, the right of association was granted to 
capital. With freedom from the taint of conspiracy, the cor- 
poration charter conferred upon the incorporators the privilege 
of "limited liability." In a partnership the members are re- 
sponsible to the full extent of their resources for the contracts 
and torts of the partnership. But the members of corpora- 
tions hav e only "limited liabiHty," usually only to the extent 

1 See Commons Labor aiid Administration, 1913, "American Shoe- 
makers, p. 219 ff. , 



COLLECTIVE BARGAINING 93 

of their subscription. At first, incorporation could be secured 
only through special act of the legislature; and corruption was 
often employed to secure such charters. Finally, in the dec- 
ade of the 'fifties, general corporation laws were enacted. It 
is now the privilege of all persons to combine their capital 
and form corporations, with but few restrictions. So com- 
plete is the right of association of capitalists that the law has 
introduced the fiction that corporations are persons, entitled 
to many of the advantages of natural persons; and the rule 
of "limited liability" lessens the responsibility of the mem- 
bers for the acts of the corporation. 

The modem corporation has taken over both of the bar- 
gaining functions of the masters of old: the price bargain and 
the wage bargain. In the first the corporation performs the 
merchant function, and its object is to get as high prices as 
possible from the consumer. In the second it performs the 
employer function, and its object is to give as low wages as 
possible to the laborers. 

Collective action by capital has not stopped with the cor- 
poration. The corporations have themselves become mem- 
bers of associations. In these associations it has generally 
been found advantageous to separate the two bargaining func- ^ 
tions. Manufacturers' associations, "pools," and "trusts" are 
formed to deal with the price of products to consumers. 
Employers' associations deal with the wages paid to labor. 
Practically the same individuals may compose these associa- 
tions; but their functions are totally different.^ 

Labor did not win the right of collective bargaining as 
early as capital. When, in the eighteenth century, in England, 
the laborers combined to enforce their demands for higher 
wages they were prosecuted for "conspiracy." In the jour- 
neyman tailors' case,^ for example, all combinations to raise 
wages were held to be conspiracies. This common law doc- 
trine was inherited by our fathers from England. In the 
mother country the journeyman tailors' case was followed by 
the enactment of statutes to penalize combinations to raise 
wages. In 1824 and 1825 these statutes were repealed, and 
a conside rable degree of freedom to combine was conceded 

* Commons, Labor and Administration, especially p. 262 
'8 Mod. II (1721). 






!i 



; 



94 PRINCIPLES OF LABOR LEGISLATION 

to labor. In 187 1 trade unions were declared not to be il- 
legal combinations in restraint of trade. In 1875 labor was 
entirely freed from the conspiracy law in its criminal aspects. 
Finally, in 1906 the law of civil conspiracy also was swept 
away, and the trade unions were conceded complete exemp- 
tion from responsibility for damages growing out of tortious 
acts alleged to have been committed in their behalf. 

In the United States, also, prosecutions for "conspiracy" 
often followed the early strikes for higher wages. In the 
indictment or in the charge to the jury in some of these cases 
there was presented the doctrine of the common law that all 
combinations to raise wages are illegal.^ But this was never 
unchallenged law in the United States; and in only one case 
did a court of final jurisdiction hold this view.^ Yet it was 
considered that there was something unlawful about com- 
binations of laborers. They were denounced as being in- 
jurious to the public, because they were injurious to employers 
and made it difficult for them to compete in distant markets. 
Naturally the journeymen looked upon all of these cases as 
prosecutions brought by the masters to resist increases of 
wages. This was undoubtedly the real motive of the prosecu- 
tion; but in most of these cases the restrictive rules and prac- 
tices of the unions were emphasized, not the effort to raise 
wages. 

In the earliest cases the juries always convicted; but there 
was a growing public sentiment against these prosecutions. 
After the decade of the 'thirties it was generally recognized 
that a combination to raise wages is not of itself a conspiracy. 
In 1842, in Commonwealth v. Hunt,' the Massachusetts 
Supreme Court even held that it was lawful for laborers to 
go on strike to gain a closed shop. This decision was very 
much more favorable to the workingmen than are those of 
the Massachusetts courts of recent years. After Common- 
wealth V. Hunt there were still prosecutions of workingmen 
for "conspiracy," but in the cases of the 'fifties and 'sixties 
acts of violence were usually involved. There was still com- 



* For these early cases see Documentary History of American Industrial 
Society, Vols. Ill and IV. 

2 People V. Fisher, 14 Wendell 9 (1835)- 

' Commonwealth v. Hunt, 4 Metcalf in (1842). 



t 



COLLECTIVE BARGAINING 95 

plaint about the "conspiracy laws," but they had lost their 
meanmg. 

Thus, in a certain sense, the rights which the workingmen 
gamed m England through legislation in the 'seventies were 
acquired by them in the United States without legislation at a 
much earlier date. But there was the vital difference that 
while in England the entire conspiracy law in its application 
to labor was swept away, it was only modified in this country 
by common consent and favorable construction. In England 
definite statutes replaced the vague conspiracy law; in the 
United States the conspiracy law remained, without ever 
being really clarified. The few statutes which were enacted 
m reference to labor combinations did little more than to re- 
state the common law. * 

In the 'eighties a new spirit was manifested in the court 
decisions m this country involving labor combinations These 
decisions made clear that labor's right to combine was still 
seriously restncted. Part of the explanation of the changed 
attitude of the courts is the aggressiveness of labor at that 
time. The violence and riots which accompanied the strikes 
of that period made the unions seem dangerous combinations. 
Another factor was the gradual identification of "business" 
with "property." "Good will" and "trade names" have 
been recognized as property only within the last century 
Not until the last few decades have the courts gone further 
and recogmzed as property the right of a free access to the 
commodity market and to the labor market. Not merely are 
contracts already made treated as property, but also the right 
to be unhindered by others in making contracts 

It is this right -to do business- which is of greatest im- 
portance m labor disputes. Strikers may attack the physical 
property of employers; but the police, the mihtary, and the 
cnminal laws are usually adequate to deal with this menace 
But without any destruction of physical property the em- 
ployer s business may be ruined. Picketing may prevent his 
getting new employees, and boycotting may keep him from 
selhng his products. While the modem manufacturer can 
often survive the destruction of his physical property ob- 
struction of access to the labor market or to the commoditv 
market brings with it certain ruin. 



96 



PRINCIPLES OF LABOR LEGISLATION 



i 



The recognition of ** business'* as "property" ushered in 
the era of injunctions in labor disputes. The first injunction 
was issued in 1884, but not until the Debs case ^ ten years 
later did the public generally know anything about the use of 
injimctions in labor disputes. Since that time this has been 
the legal remedy most usually sought by employers when 
menaced by strikes or boycotts. Injunctions protect physical 
property, but are probably less effective in this respect than 
prosecutions under the criminal laws. They are vastly supe- 
rior, however, in protecting the expectancies of an established 
business and are principally sought for this purpose. In fact, 
nobody thought of injunctions in connection with labor dis- 
putes until these expectancies were recognized as property. 

In 1908 organized labor was suddenly aroused to a new 
menace, which appeared more serious even than the injunc- 
tion and the conspiracy doctrine. This was the damage suit 
under the Sherman anti-trust act, as developed in the decision 
of the United States Supreme Court in the Danbury hatters' 
case.2 Almost immediately after the passage of the Sherman 
act in 1890 it was held to be applicable to labor unions, but 
not until more than $250,000 damages were assessed against 
the hatters did labor show any great concern about this situa- 
tion. It was then feared that the Sherman act rendered all 
strikes, if not all labor organizations, unlawful. This was 
probably beyond the thought of the Supreme Court; but the 
decisions of some of the district courts after 1908 made it a 
reasonable fear. Organized labor bent every effort toward 
securing relief from this menace, and in 19 14 scored a signal 
victory in the inclusion of a provision in the Clayton act to 
the effect that the anti-trust laws shall not be construed to 
forbid the existence of labor organizations, nor to restrain 
their members from carrying out the "legitimate objects" 
thereof. This provision probably has not placed labor out- 
side the scope of the anti-trust law,^ but has eliminated the 
danger of an extension of the restraint-of-trade doctrine to a 
possible outlawing of all labor organizations. 

1 In re Debs, 158 U. S. 564, 15 Sup. Ct. 900 (1895). 

2 Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908). 

' See Kroger Grocery & Baking Co. v. Retail Clerks, 250 Fed. 890 
(1918); United States v, Norris, 255 Fed. 423 (1918). 



COLLECTIVE BARGAINING 
(2) Doctrine of Conspiracy 



97 



Most of the cases of which labor complains have been pre- 
mised, not upon the federal anti-trust laws, but upon the com- 
mon law doctrine of conspiracy. This doctrine makes illegal 
acts done in pursuance of an agreement which are legal when 
done by one person. One manner of explaining this result is 
that when men combine their motives become of importance. 
Their combination is legal when their motive is primarily to 
benefit themselves, and illegal when they aim primarily at the 
injury of another. One person may sever all business rela- 
tions with another, if not under contract to continue them, 
regardless of the motives which may lead him to take this step.' 
But when workingmen combine to go on strike or to boycott 
an employer, the courts will inquire whether their primary 
motive is injury to the employer or benefit to themselves. 

To understand the full import of the conspiracy doctrine 
It is necessary to note two of its corollaries. One is the 
proposition that where the purpose of the combination is 
illegal every act done in pursuance thereof is rendered illegal, 
though the act may be innocent of itself. Acts normally pro^ 
tected by the constitutional guarantees of free speech, free 
press, and public assembly, become unlawful when done in 
furtherance of an unlawful purpose. As put by the Supreme 
Court of the United States: ^ "No conduct has such absolute 
pnvilege as to justify all possible schemes of which it may be 
a part. The most innocent and constitutionally protected of 
acts or omissions may be a step in a criminal plot, and if it is 
a step in a plot neither its innocence nor the constitution is 
sufficient to prevent the punishment of the plot by law." 
Again, if an illegal plot has been formed, all of the conspirators 
are responsible for the acts of any of the conspirators done 
in pursuance of the common object. Once it is established or 
taken for granted that the workingmen have conspired; any 
and all of them are liable for acts of violence which may be 
committed by some of them. 

^ The soundness of the doctrine that the legality of a com- 
bination depends upon the motives which actuate it has been 
often que stioned in recent years. It is most difficult to de- 
» Aikens v. Wisconsin, 195 U. S. 194, 25 Sup. Ct. 3 (1904). 



I I 



I 



98 PRINCIPLES OF LABOR LEGISLATION 

terniine what is the primary motive of the workingmen in 
undertaking a strike or a boycott. They aim both to injure 
the employer and to benefit themselves. The bias of the 
judge necessarily plays a large r61e in the determination of 
which of these IS the controlling motive. The doctrine that 
It IS the irnmediate object and not the ultimate purpose which 
IS controlhng, helps but httle. In most labor disputes many 
questions are at issue. A demand for the closed shop may 
be coupled with the demand for an increase in wages The 
latter IS recognized by all courts to be legal, while the former 
IS held Illegal by many courts. The result has been confusion 
and arbitrariness in the law. Where one judge sees only a 
lawful combination, another discovers an unlawful conspiracy 
1 he fundamental premise in the conspiracy doctrine is 
that the many have a power for harm which no one person 
can exercise Hence, while in the class of acts which are 
involved in labor disputes the motive is considered unimpor- 
tant when they are done by one person, it becomes a deter- 
mining factor when they are done in pursuance of an agree- 
ment among several. But in American law the corporation 
has been made a person. This makes the premise of the con- 
spiracy doctnne an absurdity. The power of the large cor- 
poration though a single person in the law, is greater than 
that of the combination of workingmen. 

Considerations such as these have' led some courts to 
abandon the old form of statement of the conspiracy doctrine 
They start with the proposition that the employer has a right 
of free access to the labor market and to the commodity 
market. Intentional interference with this right to do busi- 
ness IS prima facte wrongful. Only when the injury done to 
the employer is the result of the exercise of equal or superior 
nghts by the workingmen is it justified. These courts dis- 
tinguish between malice in fact and malice in law Whether 
personal ill-will and spite, malice in fact, actuates the work- 
ingmen, they hold to be of no importance. Malice in law 
determines the legality of their actions; and malice in law is 
merely th e intentional infliction of injury without justification. ^ 

^ Doremus v. Hennessy, 176 111. 608 at p. 6is S2 N E 02^ c^ m p 
524 (1898); Berry v. Donavan. 188 Mass. 553,7; N. E ^'^Tito^t ^^^ 
.. Essex Trades Council, 53 N. J. Eq. loi, 30 Atl 88i (189^ ^^^' ^^ 



COLLECTIVE BARGAINING 



99 



In actual application, however, malice in fact is an impor- 
tant factor in determining whether there is malice in law. 
If intentional infliction of injury without justification is un- 
lawful, everything turns upon what is considered a sufficient 
justification. This involves an evaluation of the respective 
rights of capital and labor. The employer has a right to con- 
duct his business without interference. The non-unionist 
has a right to earn his living. The union workman has a 
right to work or not to work, as he chooses. Which of these 
rights is to prevail when the union workmen go upon strike 
to compel the employer to discharge the non-unionist ? Com- 
petition is recognized to be a justification for interference with 
the rights of others. But when can the workingmen be said 
to compete with their employers? It is competition when 
the workingmen aim primarily to benefit themselves, when 
there is no malice in fact. Thus, the doctrine that intentional 
injury done without justification is unlawful makes the motive 
the criterion of the legality of the acts of labor combinations. 
Though it differs in statement from the older conspiracy doc- 
trine, its substance is the same. As Dean Lewis has put it: 
"Those who say with Justice Wells that a man is Hable for 
the harm he does if he does it maHciously, meaning by malice 
without legal excuse, naturally turn to the defendant's motive 
as at least one of the elements on which the existence of a 
'legal excuse' depends." ^ Labor has profi.ted Httle from 
the coming in of the "legal excuse" doctrine. It has re- 
phrased the conspiracy doctrine, but has kept its spirit. 

In labor cases there is always much discussion of the rights 
of the respective parties. Thus, it is said that employers 
have a right to conduct their business as they see fit. On 
the other hand, the right of the workingmen to quit emplo}^- 
ment is often described as absolute. These abstract state- 
ments read well; but the trouble is that in labor disputes 
these rights come into conflict. This clash of rights has led the 
courts to inquire into the motives which actuate the working- 
men. To justify holding against labor unions recourse has 
been had to the theory that the element of combination radi- 

,, / Columbia Law Review, February, 1905, p. 118. See also Trowbridge; 
Legal Limitations upon Interference with the Contract Rights of a Com- 
petitor," ift Yale Review, May, 19 10, pp. 55-78. 






Mi 



>; 



loo PRINCIPLES OF LABOR LEGISLATION 

cally changes the situation. Where the court holds to the 
conspiracy doctrine, no matter how it may be expressed, the 
decision is apt to be against the union. 

There are a large number of cases, however, in which the 
coi^ts have held that the fact that acts are don; in purS^^ce 

hnW ^.r.f ^" '^°^' "°* ^^^^ ^^^'' ^^g^''ty-' Other cases 
r.TJ f ^f, f °'T '^*""°' ''^'^^^'' '"^gaJ acts which are 

o thTnl 'V ^^"^ '^^y ^^^P ^^^y the foundations 
Z. t !?u ."? of conspiracy. The courts of California have 
gone furthest in this regard. In California quitting work and 
retusmg to patromze are held to be absolute rights of the 
worlcingmen and the fact that these rights are exercised in 
pursuance of a combination is treated as immaterial.' The 
only Imiitation upon collective action is that labor shall not 
re^L'lTf r °'' ""'Tdation. The practical conclusion 
\M ^^''^°™"' "' *ha' *" strikes and all boycotts are 

Even if the motive of the workingmen is held to be im- 
matenal, there is wide room for diversity of opinion as to 
the means which labor may employ to gain its ends. There 
K agreement that coercion and intimidation are unlawful 
«ut what conduct is coercive and intimidating.? In Cali- 
fornia, pressure brought to bear upon third parties through 
sympathetic strikes and secondary boycotts is treated as 
not coercive. On the other hand, picketing is held to be 
necessanly intmudating." In other jurisdictions pressure upon 
third parties, other than that resulting from persuasion; is 
treated as coercion, while picketing is often considered legal 
There IS a pronounced tendency in recent cases throughout 
the country to say little about the illegal motives of the work- 
ingmen and to find the illegality of their conduct in the un- 
lawful means they employ. This may seem to be a great 
advance for organized labor ; but the gain is deceptive. Prac- 
tically^ makes no difference whether a sympathetic strike 

' Ibid., p. 17, and cases cited. 

^r Jfif ^^-^"""^ ^o"- ?"'lding Trades' Council, 154 Cal. s8i 08 Pac 1027 
(19^); Pierce t;. Stablemen^s Union, 156 Cal/ro. 10^ Pac ^Jd Ti^ '^ 
^ 'P^^-cet^. Stablemen's Union, 156 Cal. 70 10^ Pac ?if rio^^V* 
parte Williams. 158 Cal. 550. U,>.|c, 1035 (?9io)^ ^^ ^^^' 



COLLECTIVE BARGAINING loi 

is condemned because the motive of the workingmen is held 
to be to injure the employer, or because it amounts to an 
effort to coerce a third party. "Coercion" and "intimida- 
tion" are so vaguely defined, that almost any conduct can 
be considered coercive or intimidating. 

Thus, there are three theories which underiie most of the 
cases involving collective action by labor. The most funda- 
mental of these is the theory that when men combine the 
legality of their acts depends upon their motives. Another 
holds that intentional interference with the rights of others 
is wrongful, unless it results from the exercise of equal or 
superior rights. The third theory places emphasis upon the 
element of coercion and intimidation involved in the acts of 
combination. In their manner of statement these theories 
are wide apart; but their practical conclusions have been 
much the same. No matter which theory a court may enter- 
tain, there is great latitude in its application. Under each 
theory much depends upon whether the demands of the work- 
ingmen are justified or unjustified. Hence, the bias of the 
judge is likely to be determining. 

(j) Court Decisions 

a. Strikes. When we pass from the abstract theories of the 
courts to their practical conclusions, similar diversity of state- 
ment is encountered. In part this is due to real differences 
in the conclusions reached. In different states the rights of 
organized labor differ widely. Even in the same state it is 
often quite impossible to reconcile the several decisions. 
Dissenting opinions are very common. The confusion which 
exists, however, is due not only to real differences as to the 
law, but also to the use of common terms in divergent mean- 
ings. Neither the term "strike" nor the term "boycott" 
has a standard meaning in law. Some courts speak of the 
"strike" as involving only the collective quitting of work. 
Others include within that term not only the collective quit- 
ting, but also the agreement which precedes it. Even this 
conception is too narrow. To it must be added the idea that 
the quitting is but temporary, that the strikers do not consider 
that they have permanently quit, but that they expect to 



H 



1 ■ I 



102 PRINCIPLES OF LABOR LEGISLATION 

be employed again on different terms, through coercion of 
their employers. 

_ As to the term "boycott" it has been truly said that 
scarcely any two courts treating of the subject formulate the 
same defimtion."' The essential idea in many of these 
defimtions is that third parties are illegally coerced to sever 
their business relations with the employer against whom the 
union IS wa.ging its fight. Thus, it was said in one case that 
the word in itself implies a threat." » Similarly Judge Taft 
defined a 'boycott" as a "combination of many to cause a 
loss to one person by coercing others, against their will, to 
withdraw from him their beneficial business intercourse, 
through threats that, unless those others do so, the many 
will cause similar loss to them." » Such definitions make no 
aUowance for the so-called primary boycott, in which no 
effort to coerce third parties is involved. In recent years 
boycotts against restaurants have been more frequent than 
any other boycotts, but they would not fall within the defini- 
tion Of Judge Taft. On the other hand, sympathetic strikes 
and stnkes against the use of non-union material are by this 
definition treated as "boycotts." Trade unionists at times 
use the term in this broad sense, but more commonly only in 
reference to the collective refusal to buy the products of an 
unfair manufacturer or merchant. This is the sense in 
which this term will be used in this chapter. 

Upon the question of the legality of trade unions per se 
there is general agreement among the courts. Statutes have 
been passed m a number of states which make it a felony to 
organize or belong to any organization which advocates crim- 
inal syndicalism.' The unions affiliated with the American 
Federation of Labor, however, have always been regarded as 
lawful orgamzations, except in two decisions, neither of which 
was rende red by a court of final jurisdiction." The theory, 

Pac^ify'tfA)"^^"- "■ ^°''^"^ Federation of Labor. 37 Mont. 264, 96 

'Brace v. Evans, 5 Pa. Co. Ct. 163, at p. 171 fi888) 
Toledo, A. A. & N. M. R. Co. .. Pennsylvanii C0.754 Fed 730 (.80.I 

« See, for instance, California, Laws 1919, C. 188 '^ *^^^" " 

^08 r?^V »f^^' ■« (Ohio) Superior and Common Pleas Decisions 
(1912) Hitchman Coal and Coke Co. v. Mitchell, 202 Fed. 51I 




COLLECTIVE BARGAINING 103 

entertained in England before 1871, that trade unions have no 
standing in court because they are illegal combinations in re- 
straint of trade, never gained a foothold in the United States 
But while the legality of trade unions is not questioned 
there have been serious restrictions upon their efforts to make 
themselves effective. The strike, the most essential of labor's 
weapons, has often been condemned as illegal. Much con- 
fusion exists as to the legality of strikes, due principally to the 
h' M?.? .'??^^"!"^' if .^hich this term is used. Many courts 
hold that striking," in the sense of collectively quitting work 
IS always legal. What is really meant is that quitting work 
cannot be directly prevented. The thirteenth amendment has 
torbidden slavery and involuntary servitude. The specific 
enforcement of labor contracts is slavery. Even when under 
a dehmte time contract, workmen may not be compelled to 
labor when they wish to quit. But an action would still lie 
against them m damages for the breach of their contract 
In practice but few workmen labor under contracts running 
for a definite tune. Hence, to all practical intents and pur- 
poses, quitting work is always lawful. This is what most 
courts mean when they declare that it is lawful to strike for 
any or no reason. 

• ^f j" ""^f '*"i''^^ something more than quitting work is 
involved. There is an antecedent agreement to quit, there 
are deinands upon the employer, and there is a "threat" that 
unless he yields a strike will be called. The element of com- 
bination entei^ into the strike. Even after the workmen have 
^r u 7i ^•^*.'" ^""'^^^^ ^* '^ ^^^ entire combination, 
the^trike '^"'"'"^ '^°^^ '^ ''"^ ^ P^^' ^^'^^ constitutes 

..I'i^if'*^ r ^}^ ^"^ ^ °°* ^^'^^y^ '«Sal. The rule most 
generally applied is that when the purpose of the strikers is 
pnmanly to injure the employer or non-union workmen the 
.t^tPn'tv, ^^f The Massachusetts Supreme Court has best 
othl!^ ^'' "fV ^° ^""'"'^y interference with the rights of 

wWch ft" J^T T'' 'I ^°°^ ^^^^ ^'"ke for a purpose 
wh^ch the court decides to be a legal justification for such in- 

causeTh^' '/-u ^'"'^^>^"°t a strike for a legal purpose be- 
ca;^^ stnkers stmck m good faith for a purpose which 
De Mimco v. Craig, 207 Mass. 593, 94 N. E. 317 (19,1). 






I04 PRINCIPLES OF LABOR LEGISLATION 

they thought was a sufficient justification for a strike. As 
we have said already, to make a strike a legal strike the pur- 
pose of the strike must be one which the court as a matter of 
law decides is a legal purpose of a strike, and the strikers must 
have acted in good faith in striking for such a purpose." In 
other cases the fact that the strikers aim to "coerce" the 
employer and "threaten" him with loss unless he complies 
with their demands is emphasized. 

The result of the application of these doctrines has been 
that strikes have often been condemned as unlawful. The 
Massachusetts cases are the most extreme in this respect. 
Ahnost never have they found that strikers were pursuing 
lawful objects when they endeavored to procure the discharge 
of non-union workmen or of the members of rival unions.^ 
They condemn also strikes to procure the removal of objec- 
tionable foremen, and all sympathetic strikes.* The Massa- 
chusetts cases even hold that though the strike is for higher 
wages, the members of the union may not be coerced to 
participate therein through threat of a fine or of expulsion 
from the union.^ In Connecticut and in Vermont strikes 
against non-unionists have been condemned.-* Closed shop 
strikes have been held unlawful also in New Jersey, as have 
strikes against the use of non-union material.^ In Penn- 
sylvania there is a statute which reads to a layman as though 

^ Plant r. Woods, 176 Mass. 492 (1900); Berry v, Donavan, 188 Mass. 
353. 74 N. E. 603 (1905); Aberthaw Construction Co. v. Cameron iqj 
Mass. 208, 80 N. E. 478 (1907); Reynolds v. Davis, 198 Mass. 294, 84 
N. E. 457 (1908); Folsom v. Lewis, 208 Mass. 336, 94 N. E. 316 (1911)- 
Snow Iron Works v. Chadwick, 227 Mass. 382, 116 N. E. 801 (1917)' 
Slight y contrary, Pickett v. Walsh, 192 Mass. 572, 78 N. E. 753 (1900); 
Comelher v. Haverhill Shoe Mfrs. Ass'n, 221 Mass. 554, 109 N. E. 64^ 
(1915). ^^^ ^ ^'^ 

» De Minico v. Craig, 207 Mass. 593, 94 N. E. 317; Hanson v. Innis. 
211 Mass. 301, 97 N. E. 756 (1912); Reynolds v. Davis, 198 Mass. 294. 
84 N. E. 457 (1908). '^^' 

' Willcut & Sons Co. v. Driscoll, 200 Mass. no, 85 N. E. 897 (1908)- 
Casson v. Mcintosh, 199 Mass. 443, 85 N. E. 529 (1908). 

* Wyeman r. Deady, 79 Conn. 414, 65 Atl. 129 (1906); Conners v. Con- 
nolly, 86 Conn. 641, 86 Atl. 600 (1913); State v. Dyer, 67 Vt. 690, 32 Atl. 
814 (1894). But see also Cohn & Roth Electrical Co. v. Bricklayers 
92 Conn. 161, loi Atl. 659 (1917). 

^ Booth r. Burgess, 72 N. J. Equity 181, 65 Atl. 226 (1906); Brennan 
V. United Hatters, 73 N. J. 729, 65 Atl. 165 (1906); Blanchard v. District 
Council, 78 N. J. 737, 71 Atl 1 131 (1909); Ruddy v. Plumbers, 79 N. J. 
467. 75 Atl. 742 (iQioi. ' /y J 



COLLECTIVE BARGAINING 



los 



it legalized all strikes. Yet the courts of that state have 
held unlawful strikes growing out of jurisdictional disputes, 
closed shop strikes, and strikes against non-union material. 1 
In Illinois the question of the legaHty of a strike for the closed 
shop has been several times before the supreme court. In 
1905 such a strike was held to be unlawful; in 19 12 the court 
split evenly upon this question.^ New York has a statute 
legalizing "peaceable assembling or cooperation" by work- 
ingmen "for the purpose of securing an advance in the rate 
of wages." Elsewhere such strikes are held lawful, even 
without any such statute. Strikes for many purposes have 
been condemned by the New York courts. The court of 
appeals has held unlav^ul strikes to collect fines from em- 
ployers.2 Inferior courts have condemned strikes against non- 
union material.^ Some New York cases also hold sympathetic 
strikes to be imlawful.^ The question of the legality of strikes 
for the closed shop has often come up in New York. The de- 
cisions of the court of appeals upon this issue are very difficult 
to reconcile. In the Curran v. Galen case in 1897 « a non- 
union workman who lost his job because his employer entered 
into a closed shop agreement was held to have an action 
against the union. In the Gumming case in 1902 ^ the ma- 
jority of the court squarely sustained a strike to estabhsh a 
closed shop. In the Jacobs v. Cohen case in 1905,^ however, 
an effort was made to reconcile the two prior decisions and to 

J^Erdman v. Mitchell, 207 Pa. 79, 56 Atl. 327 (1903); House Painters 

llvr^^^^y' '^ ^^* ^^^^' 335 (1904); Bausbach v. Rieff, 237 Pa. 482, 85 
Atl. 762 (1912); Patterson v. Trades' Council, 11 Pa. Dist. 500 (1902); 
Purvis V. Carpenters, 214 Pa. 348, 63 Atl. 585 (1906). 

2 0'Brienr. People, 216 111. 354, 75 N.E. 108(1905); Kemp t;. Division 
No. 241, Amal. Association of Street and Electric Ry. Emplovees. 2'^s; 
111. 213, 99 N. E. 389 (1912). ^ y f :>o 

3 People V. Barondess, 133 N. Y. 649, 31 N. E. 240 (1892). See also 
People V. Weinsheimer, 117 App. Div. 603, 102 N. Y. Supp. 579 (1907). 

< People V. McFariin, 43 Misc. 591, 89 N. Y. Supp. 527 (1904); Albro 
J. Newton Co. v. Erickson, 70 Misc. 291, 126 N. Y. Supp. 949 (191 1). 

'Beattie v. Callanan, 67 App. Div. 14, 73 N. Y. Supp. 518; 82 App. 
Div. 7, 81 N. Y. Supp. 413 (1901-03); Schlang 1;. Ladies' Waist Makers, 
67 Misc. 221, 124 N. Y. Supp. 289 (1910). Contrary Searle Mfg. Co. v. 
Terry, 56 Misc. 265, 106 N. Y. Supp. 438 (1905). 

« Curran v. Galen, 152 N. Y. 33, 46 N. E. 297 (1897). 

' National Protective Association of Steamfitters and Helpers v. 
Cumming, 170 N. Y. 315, 63 N. E. 369 (1902). 

* Jacobs V. Cohen, 183 N. Y. 207, 76 N. E. 5 (1905). 



!; 



!P 



«■ 






io6 PRINCIPLES OF LABOR LEGISLATION 

consider them both as law. The doctrine evolved seems to be 
that the closed shop is lawful as long as it does not give the 
union a monopoly in the community in which it operates. 

Enough cases have been cited to illustrate the attitude of 
the courts toward strikes. Except where compulsory arbi- 
tration has been introduced, as in Kansas in 1920,^ strikes 
solely and directly involving the rate of pay or the hours of 
labor are in ordinary times everywhere considered legal. But 
strikes to gain a closed shop, sympathetic strikes, and strikes 
against non-union material have been condemned in many 
jurisdictions. Only in California is it settled law that all 
strikes are legal. 

But because strikes are illegal it does not follow that there 
is any effective way of preventing them. Arthur v. Oakes 2 
authoritatively established that laborers may in no circum- 
stances be enjoined from quitting work. In some injunc- 
tions, however, "conspiring to quit" has been enjoined. In 
others the union officers have been prohibited from advising 
or ordering the workmen to go upon strike, or from paying 
strike benefits. A notable injunction of this type was secured 
by the federal government during the bituminous coal mine 
dispute of 1919. Taking advantage of the war-time food and 
fuel control act, which prohibited conspiracies to curtail pro- 
duction in either of these lines, the Department of Justice 
asked for an order restraining the officials of the miners* 
organization from calling a strike and from distributing strike 
funds. The miners showed that while the act was under 
discussion in Congress it was authoritatively stated on the 
floor of the Senate "that the administration does not construe 
this bill as prohibiting strikes and peaceful picketing and will 
not so construe the bill, and that the Department of Justice 
does not so construe the bill and will not so construe the bill." ' 
They contended also that the war was over, and that the 
government had recognized this fact in relation to the coal 
industry by winding up the affairs of the Fuel Administration, 
by abandoning the distribution of coal through the War 
Industries Board, and by ceasing to collect coal production 

* See "Coercion by Government," p. 149. 

* Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310 (1894). 

» Congressional Record, 65th Congress, ist Session, p. 5904. 






COLLECTIVE BARGAINING 



107 



costs through the Federal Trade Commission. Nevertheless 
the injunction was made permanent, and the strike w^as de- 
clared off under protest by the mine workers' officials. In 
some recent cases such injunctions have been condemned as 
an indirect method of compelling the workmen to labor.^ 
Usually injunctions are not taken out until after the workmen 
have quit. Almost never have the courts acted upon the 
theory that, inasmuch as the strike is unlawful, all efforts of 
the workingmen to make it effective must be prevented. 
Whether the strike is considered lawful or unlawful by the 
courts makes little difference either in the phraseology of the 
injunction or in its enforcement. In reference to damage 
suits the situation is different. Most of the cases in which 
closed shop strikes have been condemned grew out of actions 
for damages brought by non-union worbnen who had lost 
their jobs because of such strikes. The suits were premised 
upon the illegality of the strikes, not upon the unlawful con- 
duct which may have accompanied them. 

b. Boycotts. The boycott was condemned as unlawful as 
early as 1886.^ Many decisions have since confirmed this 
view. As the Supreme Court of the United States has said, 
the courts are nearly unanimous in condemning boycotting as 
wrongful.* In a few states it is specifically prohibited by 
statute.* The reasoning relied upon in condemning the boy- 
cott has generally been that it amounts to an effort to "coerce " 
third parties. Hence it falls within the category of conspira- 
cies. In some cases an effort is made to distinguish the pri- 
mary boycott from the secondary boycott, the latter being the 
boycott of a third party, usually a merchant who sells the 
product of the employer primarily boycotted. Many courts 
in fact use the term "boycott" as embracing only secondary 
boycotts. But this distinction in practice amounts to little. 

* Thomas v. Cincinnati, N. O. & T. P. R. Co., 62 Fed. 803, 817 (1894); 
Wabash R. Co. v. Hannahan, 121 Fed. 563 (1903); Barnes v. Berry, 157 
Fed. 883 (1908); Delaware, L. & W. R. Co. v. Switchmen, 158 Fed. 541 
(1908); Kemp V. Div. No. 241 Amalgamated Association of Street and 
Electric Railway Employees, 255 III. 213, 99 N. E. 389 (1912). 

2 People V. Wilzig, 4 N. Y. Crim. 403 (1886) ; People v. Kostka, 4 N. Y. 
Crim. 429 (1886). 

' Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908). 

* See Harry W. Laidler, Boycotts and the Labor Struggle^ 1913. PP. 174" 
17/. 



Ill 



• 



I; 






io8 PRINCIPLES OF LABOR LEGISLATION ' 

Few employers of labor sell directly to the consumers. Hence, 
there can be but few primary boycotts. To boycott a manu- 
facturer pressure must usually be brought to bear upon the 
dealers who handle his products. This introduces the third 
party and the element of the secondary boycott. It is sig- 
nificant that all of the statements holding primary boycotts 
legal are ''obiter dicta," or incidental remarks delivered in the 
course of a decision on some other point, and occur in cases in 
which the courts found an illegal secondary boycott. 

In California boycotting has been held to be lawful.* 
Though its supreme court has not spoken, this seems to be 
the view also in Oklahoma,^ Some New York cases also have 
sustained the boycott.^ Both in Missouri and in Montana it 
has been held that the constitutional guarantees of free speech 
and free press give laboring men the right to refer to em- 
ployers as unfair.* Later decisions in both states, however, 
have made clear that this does not mean that boycotting is 
legal, but only that the printing and the distribution of boy- 
cott circulars may not be directly enjoined.^ 

Though boycotting has for a long time been held illegal 
in most jurisdictions, it is only in recent years that organized 
labor has taken alarm at these decisions. Until 1908 boy- 
cotts were conducted openly and fearlessly. Sometimes in- 
junctions were taken out against boycotts, but they only 
increased their effectiveness, through giving them wider pub- 
licity. The Danbury hatters' case in 1908 ^ first brought 
home to labor that damages might be collected for losses 

» Parkinson Co. v. Building Trades' Council, 154 Cal. 581, 98 Pac. 1027 
(1908); Pierce v. Stablemen s Union, 156 Cal. 70, 103 Pac. 324 (1909). 

2 Laidler, Boycotts and the Labor Struggle, p. 414. 

' Sinsheimer v. Garment Workers, 59 N. Y. St. 503, 28 N. Y. Supp. 321 
(1894); People V. Radt, 15 N. Y. Cr. 174, 71 N. Y. Supp. 846 (1900); 
Cohen v. Garment Workers, 35 Misc. 748, 72 N. Y. Supp. 341 (1901); 
Foster t;. Retail Clerks, 39 Misc. 48, 78 N. Y. Supp. 860 (1902) ; Butterick 
Pub. Co. V. Typographical Union, 50 Misc. i, 100 N. Y. Supp. 292 (1906). 
To contrary, Matthews v, Shankland, 25 Misc. 604, 56 N. Y. Supp. 123 
(1898); Sun Ptg. & Pub. Ass'n v. Delaney, 62 N. Y. Supp. 750 (1900); 
Mills V. U. S. Print. Co., 99 App. Div. 605, 91 N. Y. Supp. 185 (1904). 

< Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391 (1902); 
Lindsay & Co. v. Montana Fed. of Labor, 37 Mont. 264, 96 Pac. 127 
(1908). 

^ Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997* (1908); 
Iverson v. Dilno, 44 Mont. 270, 119 Pac. 719 (191 1). 

• I-oewe V. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908), 



i<f 



COLLECTIVE BARGAINING 



109 



sustained through boycotts. The American Federation of Labor 
at once discontinued its * ' We Don't Patronize ' ' list. In general, 
fewer boycotts were thereafter undertaken and they were con- 
ducted much less openly. There are still ntmierous local boycotts 
and some conducted upon a nation-wide scale ; but there can be 
no doubt that the attitude of the courts toward the boycott 
seriously restricts labor's use of this collective weapon. 

c. Picketing. Strikes cannot be effective when the employer is 
able to secure a sufficient number of new employees. Hence the 
strikers endeavor to prevent the employer from getting them. 
They may do this either through persuasion or through in- 
timidation. All are agreed that intimidation is unlawful. 

Persuasion, on the other hand, is generally lawful. An 
exception must be made when the employees persuaded to 
leave work are under definite unexpired contracts. It is a 
rule of the common law that an action lies against a third 
person who persuades another to break a contract without 
legal excuse. This rule has been quite often invoked in labor 
cases in this country.^ In some cases the rule has been 
applied even to persuasion to induce employees to quit work 
whose contract was from day to day.^ The courts in these 
cases have taken the position that these employees would have 
continued at work but for the intermeddling of the third 
parties. A further extension of this doctrine was made by 
the United States Supreme Court in the case of Hitchman 
Coal & Coke Co. v. Mitchell ^ in 191 7. It held that where an 
employer has compelled all of his employees to sign a contract 
that they will not join any labor union, it is illegal to make any 
effort to organize them. 

In most cases, however, it has been held that strikers may 

1 Haskins v. Royster, 70 N. C. 601 (1874); Bixby v. Dunlap, 56 N. H. 
456 (1876); Beekman v. Marsters, 195 Mass. 205, 80 N. E. 817 (1907); 
Flaccus V. Smith, 199 Pa. 128, 48 Atl. 894 (1901); Employing Printers' 
Club V. Doctor Blosser Co., 122 Ga. 509, 50 S. E. 353 (1905); Hitchman 
Coal & Coke Co. v. Mitchell, 202 Fed. 512 (19 12). 

2 Walker v. Cronin, 107 Mass. 555(1871); O'Neil v. Behanna, 182 Pa. 
236, 37 Atl. 843 (1897); Frank v. Herold, 63 N. J. Eq. 443, 52 Atl. 152 
(1901); George Jonas Glass Co. v. Glass Bottle Blowers, 77 N. J. Eq. 
219, 79 Atl. 262 (191 1); Southern R. Co. v. Machinists, ill Fed. 49 
(1901); Davis Machine Co. v. Robinson, 41 Misc. 329, 84 N. Y. Supp. 
837 (1903). 

' Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65 

(1917). 



j^BS"' 



1^ 



ill 



V 



il 



i I i 



I 11 



no PRINCIPLES OF LABOR LEGISLATION 

employ peaceful persuasion to induce the new employees 
to join them. They may employ persuasion, but must not 
resort to intimidation. But there is no distinct dividing line 
between persuasion and intimidation. In strikes, and often 
also in boycotts, the union stations pickets near the employer's 
premises to observe and speak to prospective employees or 
customers. Does the establishment of such a picket line of 
itself amount to intimidation? One view was forcibly ex- 
pressed by United States Judge McPherson: ^ "There is and 
can be no such thing as peaceful picketing, any more than 
there can be chaste vulgarity, or peaceful mobbing, or lawful 
lynching. When men want to converse or persuade, they do 

not organize a picket line The argiunent seems to be that 

anything short of physical violence is lawftd. . . . But the 
peaceful, law-abiding man can be and is intimidated by gesticu- 
lations, by menaces, by being called harsh names, and by being 
followed, or compelled to pass by men known to be unfriendly. 
. . .The frail man, or the man who shuns disturbances, or the 
timid man, must be protected, and the company has the right 
to employ such." 

This view, that picketing always amounts to intimidation, 
has been adopted also, by the courts of Calif omia.^ Though 
they recognize the strike and the boycott as legal, they will 
not permit picketing in furtherance of either. In a Massa- 
chusetts case the presence of two pickets at a factory entrance 
was held to be intimidating.^ All picketing has been con- 
demned also by the courts of Illinois, Michigan, New Jersey, 
Oregon, P ennsylvania, Washington.* Alabama, Colorado, and 

» Atchison, T. & S. F. Ry. v. Gee, 139 Fed. 582 (1905). 
^ . S^rn"- Stablemen's Union, 156 Cal. 70, 103 Pac. 324 (1909). Ex 
parte Wilhams, 158 Cal. 550, iii Pac. 103s (1910). ^ ^ ^ ^^^ 

» Vege ahn v. Guntner, 167 Mass. 92, 44 N. E. 1077 (1896). 

* Franklin ^. People, 220 111. 355 (1906); Barnes v. Typographical 
Union, 232 11. 402, 42A (1908); Beck v. Railway Teamsters, 118 Mich. 
497, 77 N. W. 13 (1898); Ideal Mfg. Co. v. Ludwig. 149 Mich. 133, 112 
N. W. 723 (1907); George Jonas Glass Co. v. Glass Bottle Blo%vers, 72 
N. J. Eq. 653, 66 Atl. 953 (1907), 77 N. J. Eq. 219. 79 Atl. 262 (1911); 
Hall r. Johnson. 87 Ore. 21 169 Pac. 515 (1917); O'Neil v. Behanna. 182 
o ^^^a4? "^^ (1897); St. Germain v. Bakery Workers, 97 Wash. 

282, 166 Pac. 665 (1917). To the same effect are decisions by federal 
courts in Otis Steel Co. v. Molders, no Fed. 698 (1901); Knudsen v 
Benn, 123 Fed. 636 (1903); Kolley v, Robinson, 109 C. C. A. 247. 187 
Fed. 415 (1911). "^ ^" ' 



COLLECTIVE BARGAINING 



III 



Washington had, by 1920, statutes making picketing a misde- 
meanor, and many cities had ordinances to the same effect.^ 

There are even more cases which hold that peaceful picket- 
ing is lawful. This is well-established law in Arizona, Indiana, 
Minnesota, Missouri, Montana, New Hampshire, New York, 
Oklahoma, and Virginia.^ But this still leaves open the 
question, when is picketing peaceful? In answer to this 
question a federal court said : ^ " The defendants claim to have 
the belief that physical violence alone is to be condemned. 
But all persons know that intimidation by words, by 
menaces, by numbers, by position, and by many other 
things is just as effective as by using clubs or brass knuckles 
or knives." 

It is the manner in which the picketing is conducted which 
determines its legality. Veiled threats toward the new em- 
ployees are condemned just as strongly as are acts of physical 
violence. Many courts have held that if the nimiber of the 
pickets is large, the picketing is necessarily intimidating.* 
Others have gone so far as to assert that speaking to the new 



1 Alabama, Code 1907, sees. 6494-95; Colorado M. A. S. 1912, sees. 
464-465; Washington, L. 1915, C. 181. Among the cities which have 
adopted anti-picketing ordinances are Anniston (Ala.), El Paso (Tex.), 
Indianapolis and Noblesville (Ind.), Oakland, San Diego, and San Fran- 
cisco (Calif.). The El Paso ordinance was held valid by the Texas Court 
of Criminal Appeals in Ex parte Stout, 198 S. W. 967 (191 7). Portland 
(Ore.) adopted by referendum an anti-picketing ordinance which was 
declared unconstitutional by the state supreme court. 

^Truax v. Cooks and Waiters, 19 Ariz. 379, 171 Pac. 121 (1917); 
Shaughnessy v. Jordan, 184 Ind. 499, 11 N. E. 622 (1916); Steffes v. 
Motion Picture Operators, 136 Minn. 200, 161 N. W. 524 (1917); St. 
Louis V. Gloner, 210 Mo. 502, 109 S. W. 30 (1908); Empire Theater Co. 
V. Cloke, 53 Mont. 183, 163 Pac. 107 (1917); White Mt. Freezer Co. 
V. Murphy, 78 N. H. 398, loi Atl. 357 (19 17) I Butterick Pub. Co. v. 
Typographical Union, 50 Misc. i, 100 N. Y. Supp. 292 (1906); In re 
Sweitzer, (Oklahoma), 162 Pac. 1134 (19 17); Everett- Waddey Co. v. 
Typographical Union, 105 Va. 188, 53 S. E. 273 (1906). A leading de- 
cision of a federal circuit court of appeals to the same effect is Allis- 
Chalmers Co. v. Iron Molders, 166 Fed. 45 (1908). 

» Union Pacific R. Co. v. Ruef, 120 Fed. 102 (1903). 

♦American Steel «& Wire Co. v. Wire Drawers, 90 Fed. 598 (1898); 
Union Pacific R. Co. v. Ruef, 120 Fed. 102 (1903); Pope Motor Car Co. 
V. Keegan, 150 Fed. 148 (1906); Allis-Chalmers Co. v. Iron Molders, 
150 Fed. 155 (1906); Foster v. Retail Clerks, 39 Misc. 48, 78 N. Y. 
Supp. 860 (1902); Searle Mfg. Co. v, Terry, 56 Misc. 265, 106 N. Y. Supp. 
438 (1905); O'Neil V. Behanna, 182 Pa. 236, 37 Atl. 843 (1897); Jones v. 
Van Winkle, 131 Ga. 336. 62 S. E. 236 (1908). 






1; 



112 PRINCIPLES OF LABOR LEGISLATION 

employees against their will is intimidation. » Often the pay- 
ment of union benefits to induce the new employees to join 
the strikers has been prohibited in injunctions ; and there are 
a few decisions sustaining such prohibitions.^ In most cases 
involving picketing which come before the courts the evidence 
is contradictory. On behalf of the strikers testimony is pre- 
sented that the picketing has been conducted in an orderiy 
manner, and that there have been no threats or acts of vio- 
lence. The employers in their turn allege that force, threats, 
and violence have been resorted to, and often they are able 
to point to specific acts of this character. Usually, however, 
the evidence leaves doubt as to the responsibihty of the union 
for the acts of violence which have occurred. Such respon- 
sibility is assumed in many cases. There are few standards 
which the courts may employ to determine whether picketing 
has in fact been peaceful or intimidating. Hence, again, their 
bias is often determining, and the decisions have more fre- 
quently gone against organized labor than in its favor. 

Strikes, boycotts, and picketing have often been held il- 
legal. These are the weapons through which labor sectu-es 
and maintains collective bargains with employers. Collective 
agreements are worthless without a strong union to back them 
up. They are not enforceable in courts of law. The unwill- 
ing employer is kept from violating them only through fear 
of a strike. Real collective bargaining implies equal strength 
upon both sides. It results only when each side is aware of 
the strength, ability, and willingness of the other. Then a 
joint conference is held and a compromise is effected. Neither 
will violate the agreement while the other party maintains 
its strength. Thus, it will be seen that restrictions upon the 
weapons which labor may employ in trade disputes are in 
fact limitations of its right to bargain collectively. 

The Clayton act of 1914,^ many believe, has removed the 

r^ ^Ti" %"T^x't^? ^- J- ^"^^ 4^^/ ^^ ^^^' ^52 (1901); Jersey Printing 
Co J. Cassidy, 63 N. J Eq. 759 53 Atl. 230 (1902); Goldfield Mines Co. 
V. Miners Union, 159 Fed. 500 (1908). 

2 Jersey Printing Co. v. Cassidy, 63 N. J. Eq. 7S9. s^ Atl 210 
(1902); Tunstall .. Steans Coal 60., I95 F^i. &8 (191 it To con 
trary, Levy v. Rosenstein, 66 N. Y. Supp. loi (1900); Everett-Waddey 
^°a T^T- Typographical Union, 105 Va. 188, 53 S. E. 273 (1906). ^ 

3 United States, Laws 1913-1914, C. 323. '^ ^ :' / 






COLLECTIVE BARGAINING 



113 



restrictions which hamper trade unions. The most tangible 
gain to labor is the provision for jury trial in contempt cases 
where the offense charged is also indictable as a crime. This 
act further provides that injunctions issued by the federal 
courts shall not prohibit the quitting of work, the refusal to 
patronize, peaceful picketing, or peaceful persuasion. Nor 
are these acts to be considered "violations of any law of the 
United States." These provisions are to apply whether these 
acts are done "singly or in concert." Yet those in charge of 
this legislation pointed out that it did not modify the law of 
conspiracy. When workingmen combine to injure an em- 
ployer or non-unionists, their illegal purpose colors all their 
conduct. Quitting work, for instance, though ordinarily 
lawful whether done "singly or in concert," becomes unlawftil 
when undertaken in pursuance of an unlawful conspiracy. 
Hence, the Clayton act seems to make no material modifica- 
tions in the substantive rights of employers and employees. 
Certainly it does not affect cases in the state courts, which 
far outnimiber those in the federal courts. 

(4) Restrictions on Employers and Employees 

Do similar restrictions apply to employers? In theory, 
yes, in practice, no. While the workingmen's right to strike 
is restricted, the employers' right to discharge is absolute. 
In the last decades many states have enacted statutes pro- 
hibiting employers from coercing workmen into surrendering 
their right to belong to labor unions through threatening 
them with discharge unless they comply with this demand. 
These statutes have uniformly been held unconstitutional, and 
the Supreme Court of the United States is among the courts 
holding this view.^ The Supreme Court has also held that 
where workmen have signed an agreement to the effect that 
they will not belong to any labor union, all efforts made there- 
after to induce them to join a union are illegal. ^ These de- 
cisions have made it unquestionably lawful for an employer 

* Adair v. United States, 208 U. S. 161, 28 Sup. Ct. 277 (1908) ; Coppage 
V. Kansas, 236 U. S. l, 35 Sup. Ct. 240 (191 5). 

2 Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 38 Sup. Ct. 65 
(1917)- 



Vi; 



i! 



ill 



114 PRINCIPLES OF LABOR LEGISLATION 

to maintain a shop closed to all union workmen. With these 
decisions must be contrasted those relating to the establish- 
ment of a closed shop through the effort of the union. It is 
true that it has often been stated that there is nothing tmlawful 
about an agreement that only union men shall be employed, 
if the employer voluntarily enters into such an arrangement. 
The hub of the situation is that such contracts are usually not 
entered into voluntarily, but are gained through strikes. As 
has been noted, such strikes have often been condemned as 
an effort to injure non-unionists, or as amounting to coercion. 
Yet the Supreme Court has held that it is not "coercion" to 
threaten to discharge a workman unless he will renounce his 
union membership.^ 

The theory of the absolute right of the employer to dis- 
charge results also in the virtual legalization of the blacklist. 
Most of the states of the union have laws prohibiting black- 
listing; but they have been dead letters. The explanation 
lies in the fact that employers may discharge or refuse to 
employ any workman who is an "agitator" or who belongs to 
a union. Anti-blacklist laws which merely prohibit the circu- 
lation of information as to who are union members are prob- 
ably constitutional, although one federal decision does not 
even grant that much.^ He who circulates this information 
may be punished ; but the employer who acts upon it is entirely 
within his rights. His reasons for refusing to employ or for 
discharging cannot be questioned in any court. In this day 
of the telephone, the telegraph, water-marked paper, and the 
card system, it is well-nigh impossible to prove who furnished 
the information upon which a blacklisted workman was dis- 
charged. Moreover, the supplying of such information by a 
former employer upon the request of the present employer 
is regarded as privileged. It is expressly declared legal in 
the anti-blacklist laws of many states. This is the simplest 
and most common manner in which an employer secures in- 
formation about the "records" of his employees. A work- 
man discharged for "union activity" as a result of informa- 
tion secured in this manner has no redress against either his 
employer or his former employer. If the information was 

' Coppage V. Kansas, 236 U. S. i, 35 Sup. Ct. 240 (191 5). 
*Boyer v. Western Union, 124 Fed. 246 (1903). 



»ij 



COLLECTIVE BARGAINING 



115 



supplied by an employers' association or furnished gratuitous- 
ly by the former employer, the blacklisted workman cannot 
recover imless he proves who furnished the information and 
that he was discharged as a result thereof. He cannot es- 
tablish either proposition unless the employer who discharged 
him is in sympathy with him.^ This is not the case where 
the reason for the discharge was membership in a labor union. 
To all intents and purposes blacklisting is legal throughout 
the United States. 

That the blacklist is a powerful weapon in combating labor 
organizations cannot be questioned. To offset its effects 
imions have often adopted the policy of giving employment 
as organizers to members who have been blacklisted. Nor 
is there any doubt that this weapon is extensively used. There 
is no industrial center in which there are not scores who claim 
to have been blacklisted. The boycott in many respects is 
the counterpart of the blacklist; but while blacklisting is prac- 
tically unrestricted by the laws and the courts, labor's use 
of the boycott is very seriously interfered with. 

In theory the same principles are applied in reference to 
the activities of employers as to those of labor. The absolute 
right of employers to discharge is stated to be paralleled by 
the right of the workmen to quit for any or no reason. In 
all the cases in which the right to discharge was at issue no 
element of combination was involved. Hence, it may be 
said that employers have not been freed from the conspiracy 
laws. But the important fact is that in cases involving em- 
ployers this question does not arise. Even when employers 
act in concert, the nimiber of individuals involved is usually 
small, and the proof that there is a combination is difficult 
to obtain. Because of their small nimibers employers can 
effectively act together without giving much publicity to their 
combination. In fact, in the case of the blacklist, its success 
depends upon secrecy. On the other hand, every collective 
action of labor must necessarily be public. A strike cannot 
take place without a meeting and a vote. The boycott de- 
pends for success upon publicity. The union must resort to 

* This explains why workmen who were discharged upon the demand 
of employers' liability insurance companies have sometimes been able 
to recover from these companies. 



ii6 PRINCIPLES OF LABOR LEGISLATION 

the public rights of free speech, free press, and public assembly; 
but the employers' association succeeds through private cor- 
respondence. Again, it is evident that the collective activities 
of labor are much more likely to interfere with the rights 
of the public than are the acts of the employers. Pickets 
must use the streets, agitation may lead to violence, but the 
procuring of new employees is but an incident in the regular 
conduct of business. Another factor operating to give em- 
ployers a real advantage is the difficulty of getting the ques- 
tion of the legality of their actions before the courts. The 
strike and the boycott may be questioned because they in- 
vade the rights of the employers to free access to the labor 
market and to the commodity market. But no right of the 
workingman is violated when he is discharged, or when a new 
man is given the job which he quit in order to go on strike. 

(5) Justification of True Collective Bargaining 

Viewing the situation from the point of view of the practi- 
cal results, the conclusion is reached that the law to-day 
seriously restricts labor in its collective action, while it does 
not interfere with the parallel weapons of the employers. Is 
this result socially desirable? Fundamentally the question is 
whether collective bargaining by labor should be encouraged 
or discouraged. If collective bargaining is desirable, or- 
ganized labor must be conceded the free use of the methods 
through which it can secure and maintain trade agreements. 
The right of organization is valueless unless it is accompanied 
by the right to make the organization effective. 

The issue of the desirability of collective bargaining by 
labor is much confused by the parallel of the combination to 
control prices. Combinations to monopolize commodities are 
against public policy; why then should labor unions be favored 
in the law.? This parallel overiooks the vital distinction be- 
tween commodities and labor. The "commodity," labor, can 
never be divorced from the human being, the laborer. The 
labor contract is a bargain, not only for wages, but also for 
hours of labor, physical conditions of safety and health, risks 
of accident and disease. Labor cannot be placed upon the 
same plane with commodities, which are external and un- 



COLLECTIVE BARGAINING 



117 



himian. It is in the interest of the public that the most favor- 
able conditions of labor shall prevail. Since labor constitutes 
such a large part of the public, the general welfare depends 
intimately upon its advancement. While the public suffers 
from high prices, it benefits from high wages. 

It is apparent that the individual laborer is at a great dis- 
advantage in bargaining with an employer. The employer 
is often a great corporation, which is itself a combination of 
capital. But the disadvantage of the laborer is even more 
fundamental. Being propertyless, he has no opportunity to 
make his living but to work upon the property of others. 
Having no resources to fall back upon, he cannot wait until 
he can drive the most favorable bargain. It is a case of the 
necessities of the laborer pitted against the resources of the 
employer. It is only when labor bargains collectively that 
its bargaining power approximates equality with that of 
capital. 

To treat labor unions as being in the same category with 
combinations to control prices is a misunderstanding of their 
functions. Labor unions are not business organizations, like 
corporations or partnerships. They have nothing to sell. 
When they enter into a trade agreement they do not obligate 
themselves to furnish a given nimiber of laborers, or any 
laborers, at the terms agreed upon. They cannot do so, 
since they cannot compel their members to labor if these do 
not wish to work. The members of the union do not labor 
for the organization, but for themselves and their families. 
The difference between a labor union and a business organiza- 
tion, and between a trade agreement and an ordinary con- 
tract, is well expressed in a decision of the Supreme Court of 
Kentucky.* "A labor union, as such, engages in no business 
enterprise. It has not the power, and does not undertake, to 
supply employers with workmen. It does not, and cannot, 
bind its members to a service for a definite, or any period of 
time, or even to accept the wages and regulations which it 
might have induced an employer to adopt in the conduct 

* Hudson V. Cincinnati, N. 0. & T. P. R. Co., 152 Ky. 711, 154 S. W. 47 
(1913). See also Burnetta v. Marcelline Coal Co., 180 Mo. 241, 79 S. W. 
136 (1906); Barnes v. Berry, 157 Fed. 883 (1908); Fell v. Berry, 124 App. 
Div. 336, 108 N. Y. Supp. 669 (1907). To the contrary, Jacobs v. Cohen, 
183 N, Y. 207, 76 N. E. 5 (1905). 




ii8 PRINCIPLES OF LABOR LEGISLATION 

of his business. Its function is to induce employers to estab- 
lish usages in respect to wages and working conditions which 
are fair, reasonable, and humane, leaving to its members 
each to determine for himself whether or not and for what 
length of time he will contract with reference to such usages. 
... It [the trade agreement] is just what it, on its face 
purports to be, and nothing more. It is merely a memoran- 
dum of the rates of pay and regulations governing for the 
penod designated, enginemen employed on the Chattanooga 
division of the company's railway. Having been signed by 
the appellee, it is evidence of its intention, in the conduct of 
Its business with enginemen on said division, to be governed 
by the wages and rules, and for the time therein stipulated 
Enginemen in, or entering, its service during the time limit 
contract with reference to it. There is on its face no con- 
sideration for its execution. It is therefore not a contract 
It IS not an offer, for none of its terms can be construed as a 
proposal. It comes squarely within the definition of usage as 
defined in Byrd v. Beall, 150 Ala. 122, 43 So. 749. There 
the court, in defining usage, said 'usage' refers to 'an estab- 
lished method of dealing, adopted in a particular place or 
by those engaged in a particular vocation or trade, which 
acquires legal force, because people make contracts with ref- 
erence to it.'" 

The so-called "contract" which a trade union makes with 
an employer or an employers' association is merely a "gentle- 
men's agreement," a mutual understanding, not enforceable 
against anybody. It is an understanding that, when the real 
labor contract is made between the individual employer and 
the individual employee, it shall be made according to the 
terms previously agreed upon. But there is no legal penalty 
if the individual contract is made differently. To enforce the 
collective contract would be to deny the individual's liberty 
to make his own contract. 

That capital and labor should be treated equally is a prop- 
osition fundamental to American law. But the dual bar- 
gaining functions of capital must be distinguished. The price 
bargain is something very distinct from the wage bargain 
The corporation deals with both; the laborer only with the 
wage bargain. Manufacturers' associations deal with the price 



COLLECTIVE BARGAINING 



no 



bargain; employers* associations with the wage bargain. 
Trade unions do not deal with consumers at all. Their func- 
tion is to offset the advantage the employer enjoys in bar- 
gaining about wages with the individual laborer. Equal pro- 
tection of the law does not consist in treating a trade union 
like a manufacturers' association, but in treating it like an em- 
ployers' association. This is not class legislation, but sound 
classification. 

Unions of labor are just as likely to abuse their power as are 
unions of manufacturers. No organization can be trusted 
with unlimited power. In the case of the price bargain the 
public has been compelled to enact railroad commission laws, 
in order to keep down the prices charged by corporations. Is 
there similar reason for public interference in the case of the 
wage bargain.? Trade unions have hitherto been treated as 
organizations for private purposes.^ Should they be subjected 
to public regulation, as have been the monopolistic combi- 
nations? 

There is a better safeguard than public regulation against 
the abuse of power by trade unions. This is the power of the 
employers to resist such demands. Herein lies the raison 
d'etre of the employers' association. It is to the interest of 
the public, not only that labor shall be free to bargain collec- 
tively, but that the employers should also be allowed to 
combine. Without organization upon both sides there is only 
one-sided or pseudo-collective bargaining. When a corpora- 
tion deals with individual consumers or individual wage- 
earners, all the advantages of combination are on one side. 
Similarly, pseudo-collective is the bargaining maintained by the 
so-called "open shop" organizations of employers. Each 
wage-earner is compelled to accept the bargain which the 
association requires its members to demand when hiring a 
laborer. Labor unions also practise one-sided collective bar- 
gaining when they compel employers as individuals to "sign 
up" the agreements they offer. They use the power of their 
combination to prevent the employers from acting collec- 
tively. The labor union which refuses to recognize the em- 
ployers' association is setting up a pretense of collective bar- 

> See Coppage v. Kansas, 236 U. S. i, 35 Sup. Ct. 240 (1915). 




I20 PRINCIPLES OF LABOR LEGISLATION 

gaining, similar to the pretense of the employers' association 
when it proclaims, under the name of the "open shop," that 
it is entirely willing to employ union men but refuses to con- 
fer with the union. It is the usual outcome of such practices 
in these one-sided bargains for the union to insist on the 
closed shop against non-unionists, and for the employers under 
the name of ' ' open shop " to run a non-union shop. Theoreti- 
cal principles of freedom are proclaimed to gain popular or 
legal support; but in actual practice each side when pos- 
sessed of unlimited power rides rough-shod over the rights 
of others. 

Real collective bargaining is something very different. It 
is premised upon organization on both sides. This requires 
getting together in a joint conference, and, through represen- 
tatives, making a trade agreement binding upon individuals 
on both sides. A compromise between the extreme positions 
is the result. While it is in force, a trade agreement is the 
supreme law of the industry. It may even override the con- 
stitutions and the by-laws of the two associations. Dictation 
is autocracy; conference is democracy. Trade agreements 
are likely to be tolerably satisfactory to both sides, as both 
have had a voice in framing them. In real collective bargain- 
ing also lies the protection of the public. It means fair condi- 
tions for labor, and yet conditions under which industry 
can operate. It is an assurance of a minimum of industrial 
disturbance. 

^ Restrictions in the law upon collective action upon either 
side are inconsistent with collective bargaining. Complete 
freedom to combine should be given to both employers and 
employees. This policy requires no change in the status in 
law of employers' associations and the weapons they use 
to combat labor. Some dead-letter statutes are directed 
against them; but these are of no practical importance. It is 
otherwise as to the restrictions upon collective action by labor. 
Moreover, these restrictions are likely to be even more seri- 
ous in the near future. The damage suit looms up as a new 
menace to labor. The injunction has lost many of its terrors 
on account of the frequency of its use. It is now more of an 
annoyance than a real obstacle to labor; but the damage suit 
is likely to mean the destruction of unionism in its present form. 



COLLECTIVE BARGAINING 121 

(6) Damage Suits 

While there have been many damage suits in connection 
with labor disputes and many judgments against unions or 
their members, only two of these cases are important: the 
Danbury hatters' case ^ and the Arkansas coal miners' case.^ 
Both of these cases involved suits for triple damages under 
the Sherman anti-trust act, and in both the cause of action 
antedated the passage of the Clayton act. 

The Danbury hatters' case was in the courts from 1903 to 
19 1 7 and was three times before the Supreme Court of the 
United States. In the end the plaintiff secured a judgment of 
nearly $300,000 (including interest) against 175 members of 
the hatters' union. The damages awarded were for losses sus- 
tained through a boycott conducted by the union officers. 
Only a few of the defendants had any direct connection with 
this boycott. They were held liable because they remained 
members of the union after they knew or had reason to know 
that the boycott was being conducted by their officers and agents. 

The Arkansas coal miners' case has been in the federal courts 
since 19 14. It is premised upon the destruction by violence 
of mining property in a strike provoked by an attempt of the 
plaintiffs to operate their mines as "open shops" in violation 
of a trade agreement. This suit runs against the United Mine 
Workers of America, several affiliated unions, and some in- 
dividuals who participated in the violence. In the trial court 
a judgment was rendered against the defendants for $600,000, 
plus interest, costs, and attorneys' fees. This decision was 
affirmed by the Circuit Court of Appeals of the Eighth Circuit, 
with the exception of the allowance of interest. An appeal was 
in 1920 pending before the Supreme Court of the United States. 

The decisions in these cases have established the principle 
that labor unions and their individual members are respon- 
sible, without limit, for the unlawful actions of the union 
officers and agents which they have in any manner authorized 
or sanctioned. Such antecedent authorization or subsequent 

* Loewe v. Lawlor, 208 U. S. 274, 28 Sup. Ct. 301 (1908), 235 U. S. 522, 
35 Sup. Ct. 170 (1915)- 

2 Dowd V. United Mine Workers, 235 Fed. i (1916) ; Coronado Coal Co. 
f. United Mine Workers (Circuit Court of Appeals, 19 19). 



»l 









122 PRINCIPLES OF LABOR LEGISLATION 

approval of unlawful acts does not require to be expressed but 
may be mferred from all the facts in the situation. Me^Sr^l 
in the union constitutes approval of the unlawful acts of the 
officers and agents when these have been given wide publicity 
Many other suits against unions or their members for dam- 
ages m connection with labor disputes were in 1920 pending 
in the courts, involving in toto several million dollars Most 
of these suits were pending in the state, not in the federal 
courts, and were not premised upon the anti-trust laws 
Decisions already rendered have made it clear that damages 
may be recovered from labor unions or their members for any 
kind of wrongful conduct in their behalf, whether it be a 
boycott, an illegal strike, violence, or unlawful persuasion 

The real menace to organized labor in the damage suit arises 
trom the pnnciples governing the responsibilitv of labor unions 
Zt '^^^'^f'^^f'^ f«^ the unlawful acts committed in their 
behalf^ It IS often contended that labor unions should be 
made financially responsible for any unlawful conduct of their 
officers and agents Such responsibility unquestionably exists 
already and is unlmaited. Neither union funds nor the a7 
cumulations of individual unionists are safe from seizure 
Ihe menace of the damage suit is best brought out in the 

and that of stockholders in corporations. It is evident that 
labor umons are very much looser organizations than are cor- 
porations Unions must entrust their officers with great 

wW^i. V^""^ ^""i ^^^ ^^ '^^ "^^^^ know little about 
what the officers are doing. Even when members disapprove 
of the actions of the officers, they can ill afford to get out of 
the union, as they would lose their insurance benefits and 
in many mdustnes would find it difficult to get a job These 
are reasons why the members of labor unions should not be 
he d to the same accountability for acts done in their be- 
halt as are stocldiolders in corporations. But in the United 
states the members of labor unions have the greater liability 
For a tort comniitted in behalf of a corporation, the stock- 
holders can be held only to the extent of their stock subscrip- 
tion or double the amount, under certain laws regulating 
banks The members of labor unions are responsible without 
Umit for tortious acts done in their behalf. 



COLLECTIVE BARGAINING 



123 



(7) English Law of Labor Disputes 

Very nearly the same situation which has been created in 
the United States by the Danbury hatters' case and the 
Arkansas coal miners' case existed in England from 1901 to 
1906, as a result of the decision of the House of Lords in the 
Taff Vale case.* In that case a union of railway workers was 
assessed damages in excess of $200,000 on account of injury 
to the company through acts of violence during a strike. 
The upshot of this case was the enactment of the British 
trade disputes act of 1906. This act places labor unions upon 
a position of equality with employers' associations, and dis- 
tinguishes both from combinations to control prices. It pro- 
vides that acts done by a combination, either of employers or 
employees, "in contemplation or furtherance of a trade dis- 
pute," shall be lawful unless they would be unlawful if done 
by one person. It provides further that such acts shall not 
be deemed unlawful because they interfere with another's 
free access to the labor and commodity markets, or because 
they amount to meddling by third parties with contractual 
rights. Thus, the law of conspiracy, in all its forms of state- 
ment, is declared not to be applicable to labor disputes. 
Moreover, in lieu of vague prohibitions of "violence," "in- 
timidation," and "coercion," England has definite statutory 
declarations as to the conduct which is unlawful. The divid- 
ing line between lawful persuasion and unlawful coercion is 
fairly definite, so that all who read may know. Picketing 
for the purpose of peacefully obtaining or communicating 
information, or of peacefully persuading another to work or 
abstain from working, is lawful. On the other hand, it is 
unlawful to commit acts of violence or sabotage, or persist- 
ently to follow another. Nor may any one quit work in 
violation of a contract when he has reason to know that the 
consequence of his leaving will be to endanger human life, 
or to expose valuable property to injury, or to deprive a city 
of gas or water. 

In English law there are no doubts as to the legality of 
labor unions or of employers* associations. Both the lockout 



» 70 L. J. K. B., 905 (1901). 



124 PRINCIPLES OF LABOR LEGISLATION 

Pallf.? f 1^' ^'V5f ' ^ ^' *^" ^^y^^^* ^"^ the blacklist. 
Farallel to the nght of employers to get new workmen is the 

to .Lf./n f '^"^"^,t^ P^^k^t peacefully and to induce them 
to abstain from working. England's policy is to allow both 
sides a free hand for a fair fight. It ignores the motives 
which underhe labor disputes. It does not interfere until the 
line of intimidation and violence has been crossed. And this 
IS a line defimtely established by statute, and not left wholly 
to the courts. Thus the English law has the merits of cer- 
tainty and practicality. 

The most radical departure in the British trade disputes 
act must still be noted. It is the exemption of trade unions 
and employers associations and their members from all 

r^^lT '"'.u^'^uZ ^^^g^^l acts alleged to have been com- 
mitted in their behalf. This was Parliament's answer to the 
I aff Vale case. It made it impossible to maintain any dam- 
age suit against a trade union or an employers' association. 
I his is a greater privilege than the limited liability of busi- 
ness corporations. The liability is not merely limited, it is 
removed tn toto. ^ Even though a union may be responsible for 
a^ts of violence, it cannot be sued for the damage it caused 
Our courts hold the members of labor unions to the unlimited 
habihty of partnerships; in England they are not Hable at all 
The position given in England to trade unions and em^ 
ployers associations violates that concept, fundamental in 
law, that he who is responsible for a wrong must answer 
therefor But an overwhehning majority of Parliament be- 

PnW tn T""^ r.^JT ^"^ ""^^^^^ ^^' P^"^^P^^ to this extent. 
Fnor to the Tail Vale case damage suits were never brought 

in England against trade unions. Whatever may have been 

the law they enjoyed exemption, to all practical purposes 

from actions in tort. In the United States, also, labor unions 

until recently occupied much the same position. And this 

practical exemption of unions from responsibility in damages 

has led to no dire consequences. Exemption of trade unions 

and employers' associations from actions in tort does not 

mean that wrongs they commit arc allowed to go un- 

punished. The union members who are guilty of acts of 

violence can be held therefor, both criminally and in torf 

but the members who have not been direct participants 



COLLECTIVE BARGAINING 125 

in the wrongdoing cannot be held civilly liable as principals 
As a curb upon union violence, it is doubtless much more 
effective vigorously to prosecute those who commit the 
violence than to take away the property of entirely inno- 
cent union members. 

The exceptional position given in English law to trade 
unions and employers' associations rests upon the proposition 
that collective bargaining is socially desirable. Trade unions 
are such loose organizations that a rigid application of the 
pnnciples of agency law is unjust. Such a doctrine operates 
to destroy the unions. This is even more true in the United 
btates than in England, since many of the acts of unions 
that are lawful there are unlawful here. 

The law conceives of no responsibility other than financial 
responsibility, and of no check other than that furnished by 
the law. But a more satisfactory check upon abuse of power 
by umons is the like power of employers. The protection of 
the public hes in the equal strength of both parties to make 
the wage bargam. To this end restrictions upon collective 
action upon either side should be removed. Thus can col- 
lective bargaining in the voluntary sense be maintained and 
extended. 

2. Mediation by Government 

The development of large scale production and the growine 

complexity and interdependence of the social order have vast- 

y increased the number and disastrousness of strikes and 

l ockouts.^ For settling differences and avoiding these far- 

1 In the German Empire there were 10,484 strikes in the vearq 1800 f/> 
1905, affecting 938,543 men, and 583 IciJkouts, Siting JoTlo^me^ 
In Austna there were 3,073 strikes affecting 572,746 men fromTsoTI!; 
^t fh ^ ^ ^^"^°"'' ^^^°/^^"? ^^'395 men. ^ In^Vance^ from 8^ to 
to^i^io. TwT V"^' ' "^"^ involving 1,865,620 men, AndTom 10^ 
cM^^'J ^9^kouts involvmg 1,031 men. In Belgium there were ofi? 
^S^f ^fffctmg 274.654 men from 1896 to 1904. Italy hadTsJ^^?^^ 

therf w^ '¥'^' n ^'^^}^95 to 1903. In Qr^tl^n^tr^^lr^Z 
there were 6,030 stnkes and lockouts affecting 1,783.889 men fmm Hoc 
to ,905 (Maximihan Meyer. StaUsHk der StrHksund ATsslerTun^eV 
1907. pp. 43, 45, 71, 78, 107, 116, 133. 154, 158 184) From T«sff^ 
1905 there were in the United States 36 7 5^ strikes in vnlv^n^ o •'' 

mately 8 703.824 employees, and 1,546 l^Ws aff eSL^^^^^^^^ 



M 



!! 









126 PRINCIPLES OF LABOR LEGISLATION 

reaching conflicts there have been devised four main meth- 
ods: mediation or conciliation, voluntary arbitration, com- 
pulsory investigation, and compulsory arbitration. 

(i) Definition of Terms 

By mediation or conciliation is usually meant the bring- 
ing together of employers and employees for a peaceable 
settlement of their differences by discussion and negotia- 
tion. The mediator may be either a private or an official in- 
dividual or board, and may make inquiries without com- 
pulsory powers, trying to induce the two parties by mutual 
concessions to effect a settlement. The successful mediator 
never takes sides and never commits himself as to the merits 
of a dispute. He acts purely as a go-between, seeking to 
ascertain, in confidence, the most that one party will give 
and the least that the other will take without entering on 
either a lockout or a strike. If he succeeds in this, he is really 
discovering the bargaining power of both sides and bringing 
them to the point where they would be if they made an agree- 
ment without him. Where the difficulty is due to the parties* 
not having thoroughly discussed the situation together, the 
mediator is often able to bring them into joint conference, 
and, in practice, most of the settlements have been arranged 
through compromise. In other cases the parties are unwilling 
to admit to each other the utmost concession they will make, 
fearing to weaken their position. In such cases a mediator 
whom both sides can trust can render invaluable service as 
an intermediary. Occasionally parties refuse to treat with 
each other, but will consent to make each a separate settle- 
ment with the mediator. Finally, mediators, through their 
familiarity with methods for dealing with analogous difficul- 
ties in different trades, are sometimes able to suggest a so- 
lution. In all cases the mediator is merely a confidential 
adviser. Even when he is a state authority he does not exer- 
cise any of the compulsory powers of the state, and if he even 
endeavors, by public investigations and recommendations, 
to bring public opinion to bear upon the disputants, he dis- 
qualifies himself for further mediation. 

Voluntary arbitration occurs when the two parties, unable 



I 



COLLECTIVE BARGAINING 127 

to settle the controversy by themselves or with the assistance 
of a mediator, agree to submit the points at issue to an um- 
pire or arbitrator, by whose decision they promise to abide. 
The complete procedure of arbitration consists of a number of 
steps: (i) The submission of the dispute to the decision of a 
third party; (2) submission to an investigation; (3) re- 
fraining from strike or lockout pending investigation; (4) 
drawing up an award; (5) enforcement of the award and re- 
frammg from strike or lockout during its life. Arbitration 
remains strictly voluntary even if at every step except the 
first the state uses its compulsory power. The essential thing 
IS that both parties consent in advance to calling in the powers 
of government. Hence it is not inconsistent with the idea 
of voluntary arbitration for the state to use its power of com- 
pelling testimony, or even of enforcing an award, provided 
that both sides have previously agreed that this be done. 

Under the system of compulsory investigation a board 
created by the state summons witnesses and takes testi- 
mony on the initiative of one party to the dispute without 
the consent of the other, or upon its own initiative without 
the consent of either. The board is one of investigation and 
recommendation, without legal power to enforce its awards. 
Compulsory investigation is sometimes accompanied by pro- 
hibition of strikes or lockouts pending the completion of the 
investigation and the publication of the recommendations. 
This compulsory postponement is the characteristic feature 
of the Canadian industrial disputes investigation act of 1907, 
copied by Colorado in 191 5, designed to prevent sudden 
strikes or lockouts. ^ But it is not essential to compulsory 
investigation. The alternative is compulsory investigation 
without the prohibition of strikes and lockouts, and this is 
provided for in the laws of several American states.^ These 
laws are generally thought to establish voluntary systems of 
mediation, but they go beyond that point when they take 
testimony without the consent of either side. 

Compulsory arbitration consists in the government's directly 
or indirectly compelling employers and employees to submit 
their disp utes to an outside agency for decision. In a com- 

* See "Coercion by Government," p. 172. 
2 See " United States," p. 137. 



128 PRINCIPLES OF LABOR LEGISLATION 

plete system of compulsory arbitration, government coercion is 
exercised at all five of the steps previously mentioned Differ- 
ences must be submitted to arbitration; witnesses must testify 
and produce papers; the parties must refrain from strike or lock- 
out dunng the investigation; the board must reach a decision 
and announce an award; the parties must observe the award 
and refram from strike or lockout during its life. The penal- 
ties for violation are fine and imprisonment, not, however 
imposed on a workman for ordinarily quitting work or on aii 
employer for the ordinary discharge of a workman, but for 
quitting or discharging collectively or with intent to obstruct 
any of the steps essential to the arbitration. 

{2) Foreign Countries 

Voluntary arbitration attained its most characteristic de- 
velopment in England. Sir Rupert Kettle, one of the founders 
of the English system, wrote: "It is agreed that according to 
the spirit of our laws and the freedom of our people any 
procedure, to be popular, must be accepted voluntarily by 
both contending parties," » and the whole history of con- 
ciliation and arbitration in England verifies his assertion In 
the early years of the nineteenth century the effects of the 
industnal revolution, the repeal of the conspiracy laws in 
1824 permitting the organization of many new unions and 
the panic of 1828 with the ensuing years of depression, united 
to bring about a series of violent strikes and lockouts. These 
early collective disputes were envenomed by mistaken legis- 
lation to control the workmen, and the memory of the period 
embittered the relations of masters and workmen for years 
Gradually, however, both sides began to see the futility of 
these destructive methods, and the idea of avoidance or 
peaceful settlement of trade disputes by means of joint boards 
of employers and employees took root. One of the very 
eariiest of these boards was established for the Macclesfield 
silk trade in 1849, and was suggested by the French industrial 

^A^r' ^i-^eeks, "Reix)rt on the Practical Operation of Arbitration 
and Conciliation in the Settlement of Differences between Employes 



COLLECTIVE BARGAINING 129 

courts (conseils de prud'homm^s).^ It proved a failure. In 
1856 and i860 committees of the House of Commons found the 
men favorable to arbitration, but the employers opposed to 
state intervention. The year i860, in which A. J. Mundella 
established the first permanent board of conciliation and 
arbitration, marks the real beginning of the movement for 
conciliation, and between 1867 and 1875 countless boards 
were established without legislation. 

It was not until 1896 that Pariiament enacted legislation 
dealing solely with collective disputes. The act of 1824* 
applied only to individual disputes and the act of 1867* 
attempted to introduce the French industrial courts. The 
act of 1872 4 provided for conciliation boards, but was a dead 
letter. In 1893 occurred the disastrous coal mine strike in 
which finally the government intervened and arranged a 
conciliation board similar to those which had been so widely 
organized without government interference. Following this 
came the conciliation act of 1896. It repealed the acts of 
1824, 1867, and 1872. It entrusted to the board of trade ^ 
certain^ powers of mediation. The board might (i) register 
any private conciliation or arbitration board on application. 
This conferred no additional powers on these boards. (2) If 
the means of conciliation in a district were inadequate the board 
of trade might appoint mediators to confer with the parties as 
to the formation of conciliation boards. (3) In case of an in- 
dustrial dispute the board of trade might (a) make an inquiry, 
(b) bring the parties together, (c) on the application of one 
party appoint one or more conciliators, (d) on the application 
ot both parties appoint an arbitrator. All expenses were paid 
by the government. 

Since the passage of the act two additions were made to the 
conciliation machinery of the board of trade before the war 
neither of which necessitated further legislation. In 1908, the 
president of the board sent a memorandum to the chambers of 
commerce and employers' and workmen's associations, stat- 

* See "Industrial Courts," p. 86. » k Cren a r f^fi 

30-3 1 Vict.. C. 105. ' / 4 f cr,^Vlct C\6 

Commerc^e' 't^f^^' "^i^^f Y'^'f ^^^^^ Depart^^^s of the IntSor. 
^onimerce, and Labor. Its labor functions were in 1916 transferred to 
the newly created ministry of labor. uaubierrea to 



I30 PRINCIPLES OF LABOR LEGISLATION 

ing that the scale of opferations of the board under the con- 
cihation act required more fomial and permanent machinery 
and announcmg the creation of a standing court of arbitra- 
tion. Three panels were to be appointed by the board, the 
first comprising "persons of eminence and impartiality" from 
whom the chairman should be chosen, the second employers 
and the third workmen. In case of a request for the services 
of the court, it should be nominated by the board of trade 
from these panels, either selected by them or jointly selected' 
by the parties, and should consist of either one or two repre- 
sentatives of each side, and a chairman, who should have a 
vote. In addition, technical assessors or experts might be 
appointed by the board to assist the court. The members of 
the court would thus be unconnected with the particular dis- 
pute but representative of the respective classes. In 1909 
the Forty-second Trades Union Congress adopted a resolution 
that the congress should elect the members of the workmen's 
panel, to guard against political influence, but the board of 
trade denied the request on the ground that "public con- 
fidence in the impartiality of the tribunal" was better served 
by the existing arrangement. 

The court of arbitration proving a failure, an industrial 
council, similar to that requested by the trades union 
congress in 1909, was created in 1911. It consisted of 
"representatives of the two great sides of the industry of 
the country." The chairman of the industrial council is 
called "chief industrial commissioner." The reasons for 
the creation of the council were the desirability of a na- 
tional representative body, and the fact that the president 
of the board of trade is necessarily a politician. The council 
deals with cases referred to it for its opinion upon the facts 
only; with cases referred to it for inquiry and recommenda- 
tions, to be made public, or accepted, if so agreed upon; with 
cases referred by the board of trade or the government; and 
with general matters referred by the board for a representa- 
tive opinion. 

Registration of conciliation boards has been far from com- 
plete, but most unregistered boards , furnished the board of 
trade with annual returns regulariy until the war. The first 
report of the board of trade recorded one attempt to establish 



COLLECTIVE BARGAINING 



131 



a board where none existed, but the later reports contain no 
such information. Evidently that feature of the act has 
become a dead letter. In the settlement of disputes the board 
of trade has been more successful. From 1896 to 19 13, 696 
cases were dealt wjth, of which 345 involved a stoppage of 
work and 351 involved no stoppage. About 65 per cent, 
of the total cases occurred in the last six years of the period 
covered by this report, the highest number recorded being 
for 1913-^ Reports during the war were irregular. Concilia- 
tion and arbitration of railway disputes have been under 
an agreement secured through the board of trade in 1907. 
This agreement broke down in 191 1 with a strike on every 
railway except one. It was then revised, so that a central 
chairman or arbitrator might be chosen from a panel prepared 
|?y the board of trade. On protest of the unions this revised 
agreement was to have lapsed in 19 14, and further revision 
was postponed until after the war. 

Thus, prior to the war. legislation concerning arbitration 
and conciliation in Great Britain was entirely permissive and 
voluntary. Employers as a class favored negotiation through 
the voluntary conciliation boards, but many of them con- 
demned the interference of the state, partly on the ground 
that it assumed no responsibility for enforcing its award, and 
partly on the ground that the arbitrator is likely to have no 
practical knowledge of the trade. 

English trade unions have from the first favored conciliation 
and voluntary arbitration, but they are opposed to compulsory 
arbitration. Several efforts have been made in the trades 
union congress to secure indorsement of compulsory arbitra- 
tion, all of which have been defeated by large and increasing 
majorities. In 1908 a resolution was introduced requesting 
Pariiament to amend the conciliation act of 1896 so as to give 
the board of trade powers of compulsory investigation on 
request of either party, no stoppage of work to take place 
pending inquiry and report. It was defeated by a large 
majonty at that time and again in 1909. 

The exigencies of the war eventually influenced a reversal 
of the go vernment's conciliation policy. During the first 

C^S 4rL/ 'C ""^ '''" """'^ "^ ^''^' °' Proceedings under Con- 



<■■ 



132 PRINCIPLES OF LABOR LEGISLATION 

year of the war, the "industrial truce" of August, 1914, and 
the treasury agreement" of March. 1915. evidenced the 
patriotic desire of union leaders to avoid all stoppages of work 
At first a marked success was attained. However, the increas- 
ing living costs and war profiteering renewed dissatisfaction 
among the workers, and weakened the government's confi- 
dence m the efficacy of existing arbitration and conciliation 
machinery to care for the situation. The defense of the realm 
act of 19 14, with subsequent amendments, made a criminal 
offense of instigation of a strike in certain industries The 
mumtions of war act of July, 1915, made a punishable offense 
ot a stnke or lockout, and even of individual cessation of work 
without permission. As first promulgated, the act estab- 
hshed controlled industries," in which it was illegal to engage 
in a lockout or strike ^.•ithout first submitting grievances to 
the proper tribunals and awaiting the decision for at least 
one month from date of submission of grievances. No worker 
m controlled industries" was allowed to quit his employer 
without obtaining a dismissal certificate under penalty of 
enforced unemployment for six weeks. "Controlled indus- 
tries being those directly or indirectly concerned in the manu- 
facture of munitions, it was apparent that under pressure of 
war the government was brought to a strict regulation of 
comparatively all phases of industrial disputes 

The arbitration structure built up under the munitions act 
was distinctly a government affair. General and local muni- 
tions tnbunals were provided, each to consist of a chairman 
appointed by the government, and if necessary from two to 
four assessors" selected from panels of employers and em- 
ployees appointed by the government. Only the more serious 
differences were referred to the general tribunals; failing set- 
tlement, they were carried to the "committee of production " 
which antedated the ministry of munitions by several months 
Later a special tribunal to deal with women's wages was 
authonzed. Later also permission was granted a disputant 
to appeal from a munitions tribunal to a high court judge 

Despite the munitions act strikes increased, particuiarlv 
large stnkes. The Welsh coal strikes of July and August 
19 1 5. and the engineering disputes of March and April 19 16* 
were in effect protests against the government policy. In the 



COLLECTIVE BARGAINING 133 

engineering disputes the shop stewards' movement emerged 
as a serious factor, and the government invoked the defense 
of the realm act to arrest the ringleaders. In the coal strike 
all the existing agencies of arbitration and conciliation, in- 
cluding the board of trade, intervened without success; the 
dispute was not settled until the prime minister had granted 
labor's demands. Miners' outbreaks throughout the year led 
to government control of the mines in December. The gov- 
ernment did not inflict on the miners the penalties prescribed 
under the munitions of war acts. The total number of cases 
heard before munitions tribunals from their inception to 
July I, 1916, was 5,354, involving 16,930 defendants and 
resulting in 11,794 convictions. Of the complaints against 
workpeople there were thirty-four strike prosecutions and 599 
out of 1,023 defendants were convicted. Approximately 
75 per cent, of the defendants in breaches of rules cases were 
convicted. No lockout complaints were recorded against 
employers, but seventy-one of the 115 defendants on the charge 
of illegal employment of workmen were convicted. From 
December, 1915, to July, 1916, 3,225 of the 12,188 ap- 
plications for dismissal certificates were granted.^ The min- 
ister of munitions reported in 19 16 that up to that time only 
about one-fifth of i per cent, of strikers were prosecuted. 
In November, 1918, it was estimated that the munitions of 
war acts had at that time operated during 75 per cent, of the 
war period, but 85 per cent, of the total time lost by strikes 
during the war occurred in that interval.^ 

The third year of the war brought a partial confession of 
defeat from the government in the enactment of the amend- 
ment of August, 1917, to the munitions act. In June, 1917, 
the engineering strike had registered labor's strong disap- 
proval of the introduction of dilution of labor in private 
engineering work. Strike leaders were arrested but later 
released without prosecution after the prime minister had 
intervened to force a settlement. A commission of inquiry 
mto indus trial unrest, appointed in June, reported one month 

rn?Wv\^ M^'^^T"^ Report i?e/ttrn of Cases Heard before Munitions 

War '' J^LtiTS'p ??"'?'il'^'^ Arbitration in Great Britain during the 
war, Journal of Political Economy, November, 191 8, pp. 882-900. 






134 PRINCIPLES OF LABOR LEGISLATION 

later urging especially repeal of the dismissal-certificate 
regulations and reform of procedure under munitions tribu- 
nals. In October, 191 7, the government abolished the leavinir- 
certmcate regulations. 

In 1917 the government, through a sub-committee of the 
ministry of reconstruction, the "Whitley committee." con- 
sidered means of securing a "permanent improvement in the 
relations between employers and workmen." The Whitley 
committee made five reports, proposing collective bargaining 
through a system of national and district industrial councils 
and works committees, representing equally organizations of 
employers and employees. ^ In the semi-organized and un- 
organized industries the substitution or close supervision of 
industnal councils by the minimum wage trade boards under 
the trade boards act of 1909, was urged. The exact deter- 
mination of the functions of industrial councils was left to 
the employers and workers concerned. It was the opinion 
of the Whitley committee that the councils should disclaim 
interference with the existing machinery of conciliation boards 
A suggested remedy for the lack of coordinated conciliation 
policy was the formation of a standing arbitration council on 
the lines of the "committee of production," one task of which 
should be the fullest publicity of the decisions of the single 
arbitrators. The Whitley committee went on record as op- 
posing compulsory arbitration and the enforcement of awards 
or agreements by monetary penalties; for such procedure was 
"not desired and not effective." 

Objections to the Whitley report were freely expressed by 
the government, employers, and workers. The government 
demurred at the trade boards' assisting the formation of in- 
dustnal councils, the boards being organized for an entirely 
different purpose. The associations of employers indicated 
that the Whitley scheme would continue on a large basis the 
conflict between labor and capital, and that it meant a con- 
tinuance of state control. Labor organizations feared that 
the outcome would be compulsory arbitration, disapproved of 
the exclusion of technical men from the councils, and stated 
that the in dustrial councils might combine to raise wages and 

» British Parliament Report, Interim Report of Sub-committee of Minis- 
try of Reconstruction on Joint Industrial Councils, March, 191 7, Cd. 8606. 



COLLECTIVE BARGAINING 



135 



costs of production, placing the burden on the consumer. 
Notwithstanding objections, the government encouraged the 
scheme. Beginning with the pottery ^nd building industries, 
thirty-five joint industrial councils had been established up 
to May 13, 1919, and thirty-six additional industries had 
made a start toward the organization of a council.^ 

In reviewing the course of arbitration during the period of 
the war in Great Britain, it is important to bear in mind that 
patriotism was an immeasurable factor in the attitude of 
workers toward arbitration. In the last full year before the 
war, 1,497 disputes were reported. Under the conciliation 
act of 1896, twenty-seven strikes or lockouts were settled by 
conciliation or arbitration in 19 13, and forty-four cases were 
settled without stoppage of work.^ A marked decrease in the 
number of disputes was apparent at the beginning of the war. 
The total disputes for 19 15 and 19 16 do not equal the figure 
for the single year of 19 13. How n^uch of this decrease can 
be laid to the principles of compulsory arbitration under the 
munitions of war acts, and how much to the patriotic impulse 
of the workers, is difficult to determine. It is significant, 
however, that the lowest point in industrial unrest during the 
war was the period from August, 1914, to August, 1915, when 
voluntary cooperation on the part of the workers was the 
only compelling bond. Of further significance is the sudden 
doubling of the niunber of recorded trade disputes in 1918, 
over 1917. 

Two conclusions emerge from British war experience with 
compulsory arbitration. One is that the composing of indus- 
trial differences is the business only of the two parties to a 
dispute. The mere existence of laws and machinery did not 
diminish tie-ups in industry. The larger and more important 
the strike the more complete was the breakdown of existing 
machinery, and the more often the government had to inter- 
pose to settle differences. The acceptance of the Whitley 
report tacitly recognizes that the compulsory introduction of 

» United States Department of Labor, Monthly Labor Review, Novem- 
oer, 1919, p. 236. 

nL^j'^'^"^ Parliament Reports, 1914-16, Vol. XXXVI, Report on Strikes 
am Lockouts and on Concthatwn and Arbitration Boards, 1913, p. 98, Cd. 



fl 



31 ^ 



136 PRINCIPLES OF LABOR LEGISLATION 

third parties to a dispute was "not desired and not effective " 
The second conclusion is that the most effective means of 
concihation is the worker's conviction that he is a responsible 
factor m the management and control of industry. Some- 
thmg of this conviction was apparent in the railway strike of 
September, 1919, when a committee of transport workers 
mediated, apparently with success, between the government 
and Its stnking railway employees, thereby ending a nation- 
wide tie-up. But the Whitley report and recent trade agree- 
ments are the most tangible evidence of the increased respon- 
sibihty given workers in controlling industry. As a means of 
conahation and as a preventive of open disputes, the new 
responsibility seems a fruitful advance. 

Legislation providing for mediation or conciliation and for 
voluntary arbitration is found also in France, Germany Aus- 
tria, Denmark, Italy, Sweden, Belgium, Roumania, Servia, 
Spam, the Netherlands, Switzerland, and Argentina » The 
French law of 1892 applies to all industries and makes jus- 
tices of the peace mediators. In Germany the law of 1890 
revised in 190 1, provides that the industrial courts « shall act 
as boards of arbitration. 

(3) United States 

a. State Legislation. A majority of the states have legisla- 
tion providing for the settlement of industrial disputes, and 
Wyoming has a constitutional provision to the same effect ^ 
Many of these states have permanent boards called boards of 
conciliation and arbitration or some similar title, with from 
two to SIX members, although three is the usual number. It 

' See United States Bureau of Labor, Bulletin No. 60, September iqos 
Government Industrial Arbitration," L. W. Hatch; Bulletin ofihe^lt 
ternationcU Labor Office, 1906-1918: United States Bureau of Ubor 
gJ!^!^)"' ^' - "'''^' '^'''' "Industrial Courts," H. L. Smnn^\Zi 
2 See "Industrial Courts," pp. 86-88. 

Torf^^T^.h^^'^T^^^^^'AT^TT^-^ i^^°' Statistics, Bulletins No. 148, 
1914, Labor Laws of the United States"; No. 166 loir; "Labo; 
^gislation of 1914-; No. 186, 1915. "Labor Legislation ^f lof.- 
No. 213 1917, "Labor Legislation of 1916"; No. 244 iqi8 ''llhor 
Legislation of ,917"; No. 257, 1919. " L^bor 'Legislatfol; o? 19 18," and 
more recent annual summaries in the American Labor Legislation Review, 



COLLECTIVE BARGAINING 



137 



is provided in every state except Alabama that one member 
shall be a representative of the employees, while all but Ala- 
bama and Connecticut provide for representation of employ- 
ers. The Oklahoma board represents farmers in addition. 
Many states forbid that more than two members of the board 
be chosen from the same political party. In other states the 
labor commissioner acts as mediator, as in Idaho, Indiana, 
and Maryland. In states having industrial commissions, a 
chief mediator is appointed along with temporary boards for 
arbitration. 

In a score or so of states compulsory investigation is pro- 
vided for.^ The state board of arbitration must proceed to 
make an investigation (i) on failure to adjust the dispute by 
mediation or arbitration, as in Indiana and Massachusetts; 
(2) when it is deemed advisable by the governor, as in Ala- 
bama and Nebraska; or (3) simply when the existence of the 
dispute comes to the knowledge of the board, as in Colorado 
and Vermont. In other states such investigation is permis- 
sive. The board of arbitration may investigate (i) when it 
is deemed advisable by the industrial commission, as in New 
York. In Ohio the industrial commission can make an in- 
vestigation, if it deems necessary, where a strike exists or is 
threatened, but if no settlement is obtained on account of 
the opposition of one of the parties investigation is to be 
made only if requested by the other party. Compulsory in- 
vestigation may be employed (2) when both parties refuse 
arbitration and the public would suffer inconvenience, as in 
Illinois and Oklahoma, or simply where the parties do not 
agree to arbitration, as in New Hampshire; (3) or generally, 
whenever a dispute occurs, as in Connecticut and Minnesota. 

Provision for enforcement of an arbitration award when 
arbitration has been agreed to by representatives of both 
sides is made by about a dozen states. In Illinois, if the 
court has ordered compliance with an award, failure to obey 
is punishable as contempt, but not by imprisonment. In 
Idaho and Indiana the award is filed with the district court 
clerk, and the judge can order obedience, violation being pun- 

» Alabama, Colorado, Connecticut, Idaho, Illinois, Indiana, Louisiana, 
Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, 
iNebraska, New Hampshire, New York, Ohio, Oklahoma, Utah, Vermont. 



i!: 



138 PRINCIPLES OP LABOR LEGISLATION 

award is punTshable by a finf oT^^, ""^ '""" °' ^ ^'"^'"^ 
common nleas as Jf j/ „,J^ emorcea m the county court of 

dustnes pending mvestigation and recommendat on 

state commerce cam'^The Jt of Tssk'^. '""^T"^ ^"*^- 
Erdman act), the act of mtWfh m ', ! ^'^^ °^ '^"S (the 



COLLECTIVE BARGAINING 



139 



statute boolvS ten years and in that time no attempt is known 
to have been made to apply the arbitration provision. Only 
once was an investigating commission appointed, that for 
the Pullman strike at Chicago in 1894, and on that occasion 
the commission took no action toward settling the dispute. 

In 1898 the Erdman act ^ was passed, repealing the earlier 
law. It applied to common carriers and their officers and 
employees except masters of vessels and seamen, engaged in 
interstate commerce, by railroad or by railroad and water, 
the term "employees" including only those actually engaged 
in train operation. The act was therefore restricted to en- 
gineers, firemen, conductors, trainmen, switchmen, and teleg- 
raphers. In case of a dispute, the chairman of the Inter- 
state Commerce Commission and the Commissioner of Labor 
must on application of either party endeavor by mediation 
to adjust the difiference. Mediation was conditioned on re- 
quest by one party, and on acceptance of the mediator's offer 
by the other party. If mediation proved unsuccessful, the 
mediators were to urge arbitration, and if the parties agreed 
a board of arbitration was formed, one member being named 
by each party and the third by these two. Failing their agree- 
ment on a third, he was to be named by the commissioners. 
The submission was to contain the following provisions: 
Pending arbitration the status existing immediately prior to 
the dispute was not to be changed; the award was to be 
filed with the clerk of the United States circuit court for the 
district and should be final and conclusive except for error of 
law; the parties must be bound by the award and it might 
be specifically enforced in equity, as far as the powers of a 
court of equity permit; neither side was to cease work on 
account of dissatisfaction with the award, for three months, 
without; thirty days' notice; the award should continue for 
one year and no new arbitration should be had on the same 
subject in that time. The award being filed, judgment was 
tp be entered accordingly at the end of ten days, unless ex- 
ceptions were filed for matter of law. Appeal might be taken 
from the decision of the circuit court to the circuit court of ap- 
peals, whose determination should be final. The arbitrators 



* United States, Laws 1898, C. 370. 



> V 



I40 



f 



PRINCIPLES OP LABOR LEGISLATION 



M pending arbitradon ^nT/i^^^ ^^"'' *^'^ '"^de unlaw- 
Violation subjected the offender fnT 'J!t.*'''. ^*^^ ^" ^^^d. 

During the first etht veat ^.1' ."^''^ ^°'" ''^^S^^' 
Erdman law only one atter^^?„ '^^ enactment of the 

that proved futile ° but Sxo^^ ""^tt" '"^"''^ '*'' ^^^ 
seded there was no s^riounfl *"' ^''^ ^-^^ ^''^ ^uper- 
which one of the Dar^e,,! f "^^' ^''"^' °' threatened" in 
tenm. Only one fale toir V""^ ^"'^'"^"' »"der its 

cepted before ^^l^l^lnT're^^irf '''''' "^ ^^- 
1912, forty-eight aonlicationT'J ^^''°^'^^^- From 1898 to 

were -cei^ th^Sr^grinTcSS^S f '^^^^■°" 
500,000 and the number nf ^rr.J '"^^^^^^ having been over 

applications wer^Se breSSirtl^i'r"^ '^•"^*-" 
ees, and sixteen by both toS. at \ "^"""^ ^^ ^'"PJoy- 
in forty-four cases of wt *™*'^- Mediation was involved 

Pour <Les w^ direcS suSl^^^^ '^'T^'^ '° -^"-«- 
invariably, when ones'de appS fot l°e." k'""^ " ^'-°^* 
at once accepted by the Xr tl '"^'^'^*.'°"' t^e offer was 

comparatively nniJ^Jt^'V^^^lZ'^: eT' '^^" 
was passed the arhitrafi'^r, ^ .. ^^^ Erdman act 

mount, but n pSct oe h^ ^^^'^' "^''^ "^^^'^'^ ^ P^ra- 
valuabie. CfaS ;rS:e£fr '^''T' P^°^^<^ -°- 
possible. Conferenc^s^^^Tr? held Tth' T'^f "" ■"'°""^' ^^ 
arately, a joint meeting Idng held r^v ^' ° ^^'^^' '^• 
«ent or agreement to Ste tas r^,,^^" ^^^^^^^^^ TT 
was observed that neither ■=;^^ 1 reacfted, and a fixed rule 

the other was v^ritmaken^.Tf^ «"T ^'^^^ ^°"^^«^'°" 
tenns of settlement were^foubLH ^"^^ ^^^^^"ent. The 
of the parties. In t^LXe aryS "'*°"' ^"'horization 

arbitrators were able to tie on 2 ,'^^' ^""' '^° 
instances. In no caseZ^^T *^tth"-d m only three 

of an arbitration aw?rd ^d?he:/'^"''r*'°" ^^ '^'"^'^ «de 
appeal to the court ^hLh proved' °"'^. °"' '"^'""^ ^^ ^" 
accountof the prolonge?;;tUir 'eS^^'^'^^'^'^'^ °" 

memb'^r^l I't^tstat'l^io^^^^^^^ to designate any 

Commerce to take the place ofTe chairm^^ °" °' °^ *^^ ^^"^t of 



COLLECTIVE BARGAINING 141 

In July, 1913, the Erdman act was superseded by the New- 
lands act.i It provides that a Commissioner of Mediation and 
Conciliation be appointed by the President with the advice 
and consent of the Senate, his term to be seven years. The 
President is also to designate not more than two other gov- 
ernment officials, appointed with the consent of the Senate, 
to constitute, with the commissioner, the United States 
Board of Mediation and Conciliation. In the same manner 
the President must appoint an assistant commissioner of 
mediation and conciliation, to take the place of the com- 
missioner if he be absent or the office vacant, and otherwise 
to assist him. In case of a controversy to which the law 
applies either party may apply to the Board of Mediation 
and Conciliation, which must seek to effect an amicable ad- 
justment and if unsuccessful must urge arbitration. If in- 
terruption of traffic is imminent and would prove detrimental 
to the public, the board may proffer its services as mediator. 
In case of a dispute over any agreement reached through the 
mediation of the board, either party may apply to it for an 
opinion. On the failure of mediation, a board of arbitration 
may be formed, composed of six or three arbitrators. Each 
side chooses two members, or one member, and these choose 
together the remaining two or one. In case of failure to agree, 
the Board of Mediation and Conciliation names the remain- 
der. Unorganized employees may choose their representative 
through a committee. The agreement to arbitrate must 
comply with the following requirements: (i) It must be in 
writing, (2) it must state arbitration is had under the act, 
(3) it must specify whether there are to be three or six arbi- 
trators, (4) it must be signed by the accredited representatives 
of both parties, (5) it must specify the questions to be decided, 
(6) it must state that a majority award is valid, (7) it must 
stipulate the maximimi interval from the completion of the 
board to the beginning of hearings, (8) it must stipulate the 
maximum interval from the beginning of the hearings to the 
handing down of the award, this time to be thirty days imless 
otherwise agreed, (9) it must state the date on which the award 
becomes effective and the life thereof, (10) it must promise 

^ United States, Laws 1913, C. 6. 






142 PRINCIPLES OF LABOR LEGISLATION 

faithful execution of the award, (ii) it must declare that the 
award, testimony, etc., are to be filed with the clerk of the 
appropnate United States district court, and (12) it may prcj- 
vide that differences as to interpretation be referred back to 
the board, their ruling to have the force of the original award 
Upon consent of both parties the board of arbitration is given 
powers of compulsory investigation. The arbitration agree- 
ment must be acknowledged before a notary public, the clerk 
of a United States district or circuit court, or one of the Board 
of Mediation and Conciliation. The award is to become 
operative m ten days after being filed, unless exception be 
taken for matter of law apparent upon the record. Decision 
is rendered by the district court, or, on appeal, by the circuit 
court of appeals. Parties may jointly ask to have a board 
of arbitration reconvened. Nothing in the act may be con- 
strued so as to require service of any employee, and no in- 
junction or other legal process may issue to compel perform- 
ance by any employee of a contract.* For the four years 
ending June 30, 1917, the Federal Board of Mediation and 
Concihation functioned in seventy-one controversies, fourteen 
of which were settled partly or wholly by arbitration, and 
fifty-two by mediation.* One dispute was settled by Con- 
gressional action, the Adamson law, which meant, in effect, 
the breakdown of the Newlands act. 

The outstanding feature of events leading up to the Adam- 
son law of September, 1916, was the failure of arbitration by 
existing agencies. The demands of the railway brotherhoods 
were met with counter-demands by the railway managers 
and the proposal to refer demands of both sides to arbitration 
under the Newlands act or by the Interstate Commerce Com- 
mission. The brotherhoods refused arbitration. Their ex- 
perience with settlements by third parties had not been for- 
tunate, they asserted. An overwhebning strike vote set the 
stoppage of work for September 2, 1916. The Federal Board 
of Media tion and Conciliation exercised its prerogative of 

>P. H- Dixon, "Public Regulation of Railway Wages," American 
Economtc R^vtew Vol V 1915, PP. 245-269; United sLis Bureard 
Labor, BullettnNo. q8, January, 1912, "Mediation and Arbitration of 
Railway Labor Disputes in the United States," C. P. Neill 

2 Report of United States Board of Mediation and Conciliation under 
Newlands act, December, 191 7, p. 3. 



COLLECTIVE BARGAINING 



U3 



offering mediation, but a four-day conference failed to bring 
agreement. Facing a country-wide railroad tie-up, the Presir 
dent conferred with both sides to the controversy and proposed 
(i) the concession of the eight-hour day, (2) postponement of 
the other demands until a commission appointed to investi- 
gate the effect of the eight-hour day reported. The brotherr 
hoods agreed, but the managers delayed. The President 
asked Congress for legislation not only to deal with the exist- 
ing situation, but also to remedy the all too apparent failure 
of the Newlands act. The Congressional answer was the 
Adamson law, passed on the day the strike was to haye gone 
into effect. The law embodied just the proposals made by 
the President to the railroad men and employers. 

It was plainly evident that the Federal Board of Mediation 
and Conciliation met defeat largely through the refusa.1 of the 
workers to submit voluntarily to arbitration. This dif!aculty 
was recognized by the President again in December, 19 16, 
when he asked Congress for compulsory arbitration legisla- 
tion. War legislation swamped Congress before action was 
taken on his recommendation. 

The Newlands act again failed in March, 19 17. At that 
time the brotherhoods renewed strike threats, owing to the 
delay of the Supreme Court in deciding the constitutionality 
of the Adamson law ^ and to the alleged evasions of the rail- 
road managers during the Supreme Cotn-fs delay. Disre- 
garding the existing Federal Board, the President immediately 
appointed a committee of the Council of National Defense to 
mediate. Into the resulting agreement was written the estab- 
lishment of the eight-hour day an4 provision for a commission 
of eight, representing employers and employees, to decide 
disputes under the agreement. The Eight-hour Commission 
appointed under the Adamson law reported inconclusively 
shortly after the railroads were taken under control by the 
govenvment for the period of the war. 

The labor situation was immediately taken hold of when 
the government asstimed railroad control apd operation in 
Decenaber, 1917, following the breakdown of the roads. A 
Railway Wage Board was appointed in January to make 



Finally upljpld in Wilspn ». New, 343 U. S. 33?, 37 Sup. Ct. 298 (|9i7)- 



144 PRINCIPLES OF LABOR LEGISLATION 

recommendations to the Director-General, and a Division of 
l^bor, headed by a brotherhood official, was created in Feb- 
ruary to be the connecting link between employees and officials 
on one hand, and Railway Boards of Adjustment, when later 
mstituted, on the other. The Railway Wage Board's recom- 
mendations were accepted by the Director-General and orders 
were issued providing for substantial increases in wages amontr 
all classes of employees. Thereafter a permanent advisory 
board on Railway Wages and Working Conditions" was 
created. Successive orders of the Director-General formu- 
lated a liberal labor poHcy and established machinery for 
handhng disputes under these orders. Board of Adjustment 
No. I, dating from March. 1918, dealt with controversies 
affecting conductors, engineers, trainmen, firemen, and en- 
ginemen; up to December i, 1918, it had docketed 408 cases 
and made 292 decisions. Board of Adjustment No. 2, author- 
ized in May, 1918, for workers in mechanical departments 
handled 147 cases and made 128 decisions up to December' 
1918. Board of Adjustment No. 3, with jurisdiction over 
telegraphers, switchmen, clerks, and maintenance-of-way men 
had docketed only one case in its fortnight's existence prior 
to December I, 1918.^ In all cases coming before Boards of 
Adjustment it was obligatory that the usual attempt at 
carrying the disagreement to the chief operating official of • 
the railroad be made before calling on the boards. The 
boards were composed equally of representatives of the ad- 
ministration and employees, and their liberal decisions did 
much to smooth out the dififerences remaining after the break- 
it'''^" tl^^'' Newlands act and the enactment of the Adamson 
law. While the railroad employees officially voiced their 
approval of the government Boards of Adjustment, on which 
only the parties in dispute were the arbitrators, they have 
consistent^ opposed the submission of disagreements to a 
neutral party which is in their opinion either biased or ignorant 
The act of March 4, 1913. creating a Department of Labor* 
provides that the Secretary of Labor shall have power to act 
as mediator and to appoint commissioners of conciliation in 
labor dis putes, whenever in his judgment the interests of 

» Annual Report of Director-General of Railroads, 1918, pp. n-i6 



COLLECTIVE BARGAINING 145 

industrial peace may require it to be done.i No appropriation 
was made for the expenses of commissioners till October, 19 13, 
and none for their compensation till April, 1914. Until the 
latter date, therefore, it was necessary to detail government 
employees from their regular work. An executive clerk was 
appointed in July, 19 14, and the work systematized. In three 
important disputes the Secretary of Labor's offer of mediation 
was rejected. In the P^re Marquette Railroad shop strike, 
the Calumet copper miners' strike, and the Colorado coal strike, 
mediation was desired by the employees, but declined by the em- 
ployers. In case mediation fails, arbitration may be proposed 
by the mediators, but they do not themselves act as arbitrators. 
In the five years 1915 to 19 19, inclusive, the Secretary of Labor 
took cogmzance of 3,644 cases, effecting 2,539 adjustments. 
Dunng 19 19 alone, 1,780 assignments of commissioners of 
conciliation resulted in 1,223 adjustments, not including 219 
cases referred to the National War Lalx)r Board.2 

In addition to the direct efforts of the Secretary of Labor 
two arbitration boards were called into existence to meet 
exigencies of war. The President's Mediation Commission 
appointed m the fall of 1917, under the chairmanship of the 
Secretary of Labor, made settlements or investigations in (i) 
the copper mines of Arizona, (2) the California oil fields, (3) the 
Pacific coast telephone dispute, (4) unrest in the liunber industry 
of the Northwest, (5) the packing industry. It should be recalled 
that this commission was a government enterprise beginning its 
study generally after an acute situation had arisen. Its primary 
intention was investigation rather than arbitration; but settle- 
ments were made in all disputes except the lumber industry 
largely because existing means of arbitration had failed. 

The National War Labor Board was the outgrowth of con- 
ferences between representatives of employers' and employees' 
organizations, the public, and the government. Its existence 
was not sanctioned by specific legislation, but was the result 
of a Presidential proclamation in April, 1918. The member- 
ship of the board consisted of joint chairmen representing the 
public, selected respectively by employers' and employees' 
national organizations, and five representatives of each of 

^ United States, Laws 1912-1913, C. 141, Sec. 8. 
becretary of Labor, Seventh Annual Report, 1919, p. 43. 



146 PRINCIPLES OP LABOR LEGISLATION 

the two groups. Premises to govern its decisions were the 
fet business of the board, and the following were ar^'v^d at : 
^nSov^^V" i^T "^"""^ '^^ ^^' (^> ^-"lement of 

S pS tithe otr'^''°Kf'^'°""^^ (4) sununons 

ZFTTf f *h%c°"ti-°^ersy before the national board in the 

rthe°n!f '"', °K ^°"!' «=«hinery. (s) failing to reach deSs on 
m the national board, provision of an umpire appointed by 
national board or by the President from a panel of Znter 
ested persons. (6) refusal to take cognizanceTdspute where 
other means of settlement by agreement or federallaw h^ 
not been invoked. (;) right of employers and employres to 
ST "? ?°"' discrimination. (8) right of colleS bar- 
gaining. Acting on these principles as an official expression 
of the government's war labor policy, the board receS .45 
ControversiesuptoMayax. 1919. In 46. of these cas^ awards 

setttmenT lirt- '''7T ^'^'"'^^"^ ^^^"^ °' ^o'-ta^ 
™f T. . ■ u ^ J""^diction, or for other reasons, 3,5 were 
refen-ed to other agencies having primary jurisdicionf «ty! 
three, involving only three distinct disputes, remained ^n toe 
docket because the board was unable to agree twentv^thre« 
were pending, and one was suspended ' twenty-three 

In the enforcement of awards the National War Labor 
Board had no specific legal sanction or penalty; appeal wL 
usually made to patriotic motives. There were b^thT^ 
nstances of resistance to the board's awards. In one cl^ 
the Western Union Telegraph Company discriminated aL^ 
union employees and refused to abide by the board's dSn 
m favor o the men. The President was rebuffed in his apS 
for patnotic acquiescence, but was sustained by CongreTin 
taking over the telegraph lines for the government. Llite? n 
September, ,918, the organized workers at Bridgeport, Conn 
struck against an award of the board, but on the President's 
threat of unemployment enforced by governmental agencies 
they returned to work. Finally, the Smith & Wessof S 
pany m Spnngfield, Mass., manufacturing fireanns refused 
to abide by the board's warning not to discriminate IgS 
union employees, and the President retaliated by ordering the 
War Depa rtment to take over the factory. 

Secretary of Labor, 5n.<;B/i .4 nB«o;j?«^or/, igig.pp. 112-113. 



ii 



COLLECTIVE BARGAINING 147 

TTie policy of having disputes settled by representatives of 
the two parties most directly at interest, the workers and the 
employers, was m the main adopted in the transportation 
act of 1920. The act declares it the duty of the roads and 
of their employees to "exert every reasonable effort and adopt 
every available means to avoid any interruption to the opera- 
tion of any earner" growing out of any dispute. In ca^ a 
dispute arises, it is to be decided if possible in conference 
between representatives of both sides. Such disputes involv- 

^f^L^ZT"^' "*'^' °' ^°'"'''"g conditions, as cannot 
be settled in this way. are to go before "railroad boards of 
^bor adjustment " which may be established by agreement 
between any road or group of roads and the employees. Ex- 
cept that the boards are to contain representatives of the 
organized workers, their size and composition are left entirely 
to the parties wncemed. Matters may come before the 
adjustment boards either upon application by the road or 
the organized workers affected, upon written petition of a 
hundred unorganized employees, upon the board's own mo- 
tion, or upon the request of the "Railroad Labor Board." 
Ihis Railroad Labor Board is set up by the act as the final 
tribunal for the settlement of railroad labor disputes. It is 
composed of mne members, appointed by the President with 
the consent of the Senate, to represent in equal proportion 
the workers the employers, and the public. The three repre- 

l?st of Z , I'u ^* *^° •^'^P' ^'^ *° ^ ^l^cted fro^ a 
list of not less than six nominees submitted by the two groups 

themselves. Members of the board may not, during their 

five-year term of office, be active members or officers of labor 

orgamzations or hold stocks or bonds of any carrier Dis 

SJwTfK'^^r^" ^^"^ ^^ ^°^'^ either upon 
failure of the adjustment board, or directly. All of its de- 
cisions must be by majority vote, but on mattere taken up 
directly one of the members representing the public must 
concur m the decision. The Railroad Labor BoTrd also hS 
power to suspend any decision on wages made by the initial 
conference, if it is of the opinion that the decision "involves 
such an increase in wages or salaries as will be likely to 

' United States. Transportation act, approved February 29, 1920. 







148 PRINCIPLES OF LABOR LEGISLATION 

necessitate a substantial readjustment of the rates of any 
earner." In such cases the Railroad Labor Board must 
after a heanng, affirm or modify the suspended decision. As 
principles for settling standards of wages and working con- 
ditions, consideration must be given to wage scales in other 
industnes, cost of living, hazards of the employment, training 
and skill required, degree of responsibility, character and 
regulanty of the employment, and inequalities resulting from 
previous adjustments. Hearings on alleged violations of de- 
cisions are to be held by the Railroad Labor Board which 
must publish Its decision. The Board of Mediation and Con- 
ciliation created in 1913 is still left in operation, but its juris- 
diction does not extend to any dispute under investigation 
by the boards established under the new act. 

A semi-official instance of arbitration occurred in the case 
of the great anthracite coal strike in Pennsylvania in 1902 
In this case the government appointed an arbitration com- 
mission on the request of the parties without any special 
authonty in law.^ The miners wanted an agreement, the 
operators felt that it would not be binding and that the union 
obstructed discipline. In October, five months after the be- 
ginning of the strike. President Roosevelt appointed the An- 
thracite Coal Strike Commission. The men returned to work 
and the commission began its inquiry. It took the testi- 
mony of 558 witnesses. The losses of the strike were esti- 
mated at $25,000,000 in wages. $1,800,000 in relief funds, 
$46,100,000 to the operators, and $28,000,000 in freight re- 
ceipts to transportation companies. The commission found 
the underiymg cause of the strike to be the issue of recognition 
of the union. The award stated that the commission would 
recommend recognition of the union, were the anthracite 
unions separated from the bituminous unions, but that diffi- 
culties should be referred to a permanent joint committee of 
miners' and operators' representatives, with an umpire ap- 
pointed by the federal court, and that the life of the award 
should be till March, 1906. The commission further recom- 
mended a system of compulsory investigation. The agree- 

» United States Bureau of Labor, Bulletin No. 43, November 1002 
Report to the President by the Commissioner of Sbor"; BuUeUn^o 
46, May, 1903, "Report of the Anthracite Coal Strike Coniiission " 



COLLECTIVE BARGAINING 149 

ment has been renewed, with modifications, and was still in 
force at the beginning of 1920. 

Much the best results of state or government intervention 
have been achieved through mediation. The government's 
war policy was expressly to resort to voluntary arbitration 
only after every effort at mediation had been made. The 
Railroad Administration, in particular, avoided arbitration 
with satisfactory results. Only in extreme cases did the 
government use its sweeping war powers to enforce decisions 
and experience has shown that both employers and employees 
generally have been moderately well satisfied with voluntary 
procedure. Public investigation, up to the last few years, has 
seldom been used. On the whole, a good deal has been ac- 
complished m the promotion of industrial peace, the chief 
obstacle in the way of success having been a lack of confidence 
on the part of the disputants in the impartiality or ability of 
the state or government officials. The powers of compulsory 
investigation and publication of the recommendations with- 
out consent of the parties, adopted in nearly half the American 
laws, have seldom been resorted to. 

Legislation is still needed to extend the field of federal 
mediation, notably in reference to the railroad situation but 
also with regard to disputes involving other agencies of inter- 
state commerce and disputes so comprehensive and vital in 
extent that existing state agencies are unable to meet the 
situation. The Secretary of Labor is empowered to intervene 
m such cases, but his intervention brings in the political and 
trade union partisanship which is objectionable to the usual 
parties to a dispute. Cooperation between federal and state 
agencies for the settlement of industrial disputes is also needed 
There is a strong tendency among certain employers and 
political groups toward the Canadian plan of compulsory in- 
vestigation. But workers generally will not tolerate anv 
abndgment of their right to strike. 

3. Coercion by Government 
(/) Restrictions on Strikes and Lockouts 
The preceding section has covered the mediatory measures 
which governments have adopted to diminish strikes and 



ISO PRINCIPLES OF LABOR LEGISLATION 

lockouts. Their essence, whetlier it be mediation, conciliation, 
or arbitration, is the voluntary acquiescence and participation 
of both the employer and the employees acting collectively. 
As long as arbitration is voluntary the bargaining power of 
neither party is affected. 

From the point of view of legislation the strike and lockout 
have two aspects. On one hand they create injury to the 
public. On the other hand, they are a part of the bargaining 
process by which wages are determined. To the public the 
effects of the strike and lockout are similar. Both cause sud- 
den stoppage of trade, failure to pay debts, expense of public 
relief, and sometimes disorder and famine prices. Hence 
legislation, springing simply from the needs of the public, 
treats the strike or the lockout as a public nuisance. 

But as methods of bargaining these two are not equivalent. 
To the employer the right to lock out is comparatively unim- 
portant. He may use it to discipline an unruly set of em- 
ployees, to discourage unionization in his factory, or to *'get 
the start" of his men. But in the usual bargaining he has no 
need of it. He can keep his factory gates open even though, 
at the same time, he may be reducing wages or refusing de- 
mands for higher wages. He is not forced to lock out and he 
can force his employees to strike or submit. Legislation which 
prohibits or restricts the lockout does not greatly weaken the 
bargaining power of the employer. 

But to the employees there can be no collective bargaining 
without the right to strike. For a strike is nothing but the 
collective refusal of the terms of the employer. Legislation 
which restricts or prohibits strikes, restricts or prohibits col- 
lective bargaining itself. It leaves the employee a helpless 
individual in the face of an aggregation of capital, unless the 
same law which restricts or prohibits the collective bargaining 
provides an adequate substitute in its place. 

Consequently, as affecting the collective bargain, there arc 
two essentials to an adequate measure of compulsory arbitra- 
tion. First, the power to restrict strikes and lockouts. This 
is directed primarily against the employees. Second, the 
power to enforce awards as to wages and conditions of labor 
while the plant is running. This is directed primarily against 
the employer. There necessarily goes with these two powers 



COLLECTIVE BARGAINING 151 

the power of compulsory investigation where one of the parties 
is unwilling to submit to arbitration, but such power is but 
a means to an end of obtaining a just award and is as essential 
to a system of public information, like the Canadian industrial 
disputes investigation act of 1907, as to a system of coercion, 
like the Australian arbitration acts. It is the joint presence 
of these two essentials which makes the difference between 
compulsory arbitration and minimum wage boards on one 
hand, and compulsory arbitration and the Canadian dis- 
putes investigation act on the other hand. The wage board 
enforces a minimum award, but does not restrict the 
right to strike.i The Canadian act restricts the right to 
strike without notice, but grants no power to enforce an 
award. 

The degree of restriction upon the strike, as expressed 
in different laws, varies widely. Carried out in administra- 
tion it varies still more widely. In the Canadian disputes act 
and in the Colorado industrial commission act of 19 15, only 
strikes without notice and hearing are unlawful. The same is 
true in the case of "unregistered" unions in New Zealand. 
On the other hand, all strikes by "registered" unions in that 
colony and strikes by anybody in most of the Australian 
states are unlawful. But because of administrative weak- 
ness, as will be shown, the actual coercion is very much less 
than is indicated on the face of these laws. 

Compulsory awards were first introduced in North America 
by the Kansas "court of industrial relations" law of 1920.2 
The acts of a dozen other states « and the Canadian industrial 
disputes investigation act contain provisions for enforcing 
awards which have first been voluntarily accepted by both 
parties. New Zealand goes a step further than this toward 
coercion* for there it is optional for either employers or em- 
ployees to register, but one of the parties registered can ap- 
peal for an award which will be enforced against both the 
parties. Finally, in Australia, and in Kansas under the law 
just mentioned, there is left no option to either employers or 
Unions. 

* Except under special circumstances. 
'See p. 173. 

'See "Mediation by Government," p. 137. 



ii 




Jl 



152 PRINCIPLES OF LABOR LEGISLATION 

(2) Development of Coercive Intervention 

^ a. England. This development toward restriction of the 
right to strike and the substitution of wage awards is some- 
times treated as a step backward. This is entirely too simple 
a view. It is true that the freedom of the bargain has de- 
veloped from a former time of government coercion and now 
shows tendencies to go back under government coercion again. 
But the modem coercion is different from the old coercion, 
since the modem govemment derives its authority from a 
broader range of classes than those which controlled the older 
governments. In the England of the middle ages, at first, 
the lord of the manor and the town officials detemiined the 
wages. The national catastrophe of the Black Death in the 
fourteenth century caused Parliament to fix wages by law in 
certain occupations. This proved unwieldy and Parliament 
gave the right to declare wages to the local justices of the 
peace. This system was codified in the Elizabethan statute 
of apprentices, 1562. England therefore was under a local 
wage board system, but on this local wage board was no 
representative of labor. The wage determined was not the 
minimum wage, as at present, above which the employee can 
bargain and below which the employer caimot bargain. It 
was a fixed wage. It was as unlawful for the employee to 
demand more as for the employer to offer less. It thus gave 
no freedom to either party for either individual or collective 
bargaining. 

In the seventeenth and eighteenth centuries England ceased 
to be an aggregation of local markets and became a national 
market. A local system of wage determination became ab- 
surd and fell into disuse. In spite of the protests of the in- 
cipient trade unions of the time, the employer was freed from 
the compulsory wage and obtained the right to bargain with 
the individual employee. On the other hand, at about the 
same time, the right of collective bargaining by employees was 
denied both by statutes and by judicial decisions. In 1720 
Parliament began a series of acts against combinations of 
labor. In 172 1 the court brought within the common-law 
doctrine of conspiracy a combination of laborers to raise their 
wages. This policy reached its culmination in the con- 



COLLECTIVE BARGAINING 



153 



spiracy acts of 1799 and 1800.^ But, beginning in 1824, when 
a strike to raise wages was partly legalized, the nineteenth 
century showed a continuous development in England of the 
right of collective bargaining. This formal right has been 
backed by unions which are both strong and reliable. The 
public has been saved much of the nuisance of the strike and 
lockout by a long series of voluntary trade agreements Yet, 
recently in several of the sweated industries and in coal min- 
ing 2 the govemment has formed minimum wage boards which 
both protect the workers against the individual bargain of the 
employer and give a basis for collective action by the em- 
ployees. Thus the twentieth century opens with a policy 
exactly opposite to that of the eighteenth century. Collec- 
tive bargaining is free, but individual bargaining, when likely 
to be oppressive to employees, is restricted. 

b. Australasia. In Australasia,^ Canada, and the United 
States there was much the same development as in England 
up to about 1890. Since 1890, however, there has been in 
Australasia a complete revolution in policy. In 1894 New 
Zealand passed its compulsory arbitration act. The next state 
to adopt compulsory arbitration was New South Wales in 
1 90 1. It was followed by Westem Australia in 1902, by the 
Commonwealth itself in 1904, and by South Australia and 
Queensland in 191 2. Meanwhile Victoria and Tasmania had 
adopted compulsory wage boards. In twenty years all of 
Australasia has adopted laws which are coercive either of 
the individual bargain, the collective bargain, or both. Even 

» See Bryan, Law of Conspiracy, 1909, for a general discussion of the 
subject. 

* See "The Minimum Wage," pp. 191, 192. 

"The material used in determining facts and conclusions regarding 
Australasia is mostly of a controversial nature. The wages boards of 
Australia have had a recent thorough and impartial treatment by Dr. 
Hammond ("Wages Boards in Australia," Quarterly Journal of Economics, 
Vol. XXIX, 1914, pp. 98-148, 326-361, 563-630). For the rest, the 
books on the subject are either too old (books age rapidly in regard to 
the Australasian labor situation) or too controversial, or if govemment 
publications, too colorless. The parliamentary debates which are given 
in full for the Commonwealth, Victoria, and New Zealand have been 
mainly relied upon. Three Australian labor papers have been consulted, 
but the anti-labor papers have been accessible only in the forms of 
clippings or quotations, of which the most valuable is the report of the 
American Trade Commission of the National Association of Manu- 
facturers (see Bibliography). 



m 



^f 



154 PRINCIPLES OF LABOR LEGISLATION 

in the United States and Canada, through the Canadian act 

there has been reintroduced coercion against strikes or lock^ 
outs m certain industries affected with a public interest 
^ No single reason explains this new development. It rests 
m part on the comparative failure of collective bargaining to 
bnng about collective agreements, in part on thf broader 
democratic source from which modem go vermnents derive 
their authonty and which makes their coercion less oppressive 
to workmen m part on the growing importance of industries 
affected with a public interest, and latterly, in part, on the de! 
mand of empoyers for protection against more powerful unions 
The evolution of coercion in Australasia to an extent f"; 
greater than that of the United States is a non^Jal rlsu t o 
a development, economic, social, and political, sharply in con- 
trast with our own. The public has been itself the largest em- 
ployer of labor through its government railroads and othTr 
public utihties. Pnvate employers of labor, particularly indus- 
tnal employers, have been men of small capital, employing few 
hands as compared with those in the United States Apoar- 
ently the capitalistic power which the Australasian labor 
leaders attack most bitteriy is that of the shipper and the 
merchant. The position of the employer is somewhat similar 
to that m the Umted States in 1830. But the position of the 
employee has been sharply different. In 1830 in the United 
States the workingmen were striking for a ten-hour day. In 
Australasia, before compulsory arbitration had come into 
existence, the eight-hour day had become the general rule 
But m Amenca there is no standard. The hours range from 
eight to twelve, the days from five and a half to seven a week^ 
the pay from $2 to $6 a day in the same locality The brick' 
layer gets from two to even four times as much as the hod- 
camer, measured by the hour, and an even higher ratio in 
comparison with ordinary laborers.^ In Australasia there is 
no such difference. The bricklayer gets but 20 per cent to 
50 per cen t, more than the building laborer.^ In the United 

r;^ri9n%t'6f 107 °' ''"'^' '^^'''' ^ ^^^' 'f ^-'^^ - ^--rican 
ment, Wages, Prices,'and St"^^^^^^^ I^^t^::^^'^^. '''''^''''^' 



COLLECTIVE BARGAINING 



155 



States labor is divided both politically and industrially by the 
negro and the immigrant. During the last twenty years the bulk 
of our immigration has been from people receiving relatively 
low wages even for Europe. The immigration into Australasia 
has been comparatively light. It has almost all come from 
the British Isles, from a people receiving the highest wages 
in Europe. There have been no difficulties presented by con- 
flicting races and different languages. There has been no 
large body of disfranchised or unnaturalized laborers. The 
election laws have been continuously more favorable to labor 
than those of the United States. In New South Wales, for 
example, an immigrant from Great Britain can vote in one 
year, from any of the Australian states in three months. Pro- 
vision is made for absent voting. The entire labor force, not 
merely the skilled workmen, as in some of our Eastern and 
Southern states, can be mobilized at the polls. 

The power of labor at the polls was first shown during 
the very years when labor proved impotent in collective bar- 
gaining. From 1890 to 1893 labor was defeated in four dis- 
astrous strikes. In 1890 a maritime strike paralyzed the 
shipping of Australia and New Zealand. To an exporting 
people, like the Australasians, a maritime strike ties up busi- 
ness as completely as a railroad strike in the United States. 
In the midst of the strike the unions asked for arbitration. 
The employers refused and the unions were beaten. The next 
year there was a sheep-shearers* strike, mainly for the right 
of collective bargaining. There was great public disorder. 
The unions were defeated. In 1892 the miners at Broken 
Hill, New South Wales, before they struck, asked for volun- 
tary arbitration. This the employers refused and in the 
strike that followed the men were defeated. Another tur- 
bulent and disastrous sheep-shearers' strike marked the year 
that followed. During those same four years the number of 
parliamentary seats held by labor greatly increased. 

These were the events preceding 1894, when the first com- 
pulsory arbitration act was passed in New Zealand. Strikes 
had meant loss to the public and defeat to the employees. 
Voluntary arbitration had been refused by the employers. 
With a progressive Liberal Party dominant in New Zealand, 
with the Labor Party developing in Australia, the unions 








i 



5, f 

^1 



>s« PRINCIPLES OF LABOR LEGISLATION 
S„i° '""™"' '" "«^" »»■»=« » wag. dew. 

would °p„b«b? W £ f JStr'lT!*""' *"" '*"• 

wages. There was a seriirotiS f^s anV"'"^^^ °' 

companied by many sUathetrSes Xl g^v^^^^n^J 
answer was to limit to narrower grounds the nVhrf?^ , 
Compulsory arbitration has now had tLntl^ ° f "^'• 
under conditions of ease andrderlnSn's of^rets *"l1 
started with a law which was iust over IhTu J ,• . 
voluntary arbitration. With^uccir^eiods ^ft^^^^^^^ 
act has been strengthened until now it is dearly ciS 

The act as passed in 1894 provided for di.tr,V?K ^ c 
cone Hation,. and one court' o^f arbi fat" „. The boards o 
conchafaon were composed of an equal number of repreSnta 
tjve^employees and employers. The represemS of 

» Seven were appointed. 



COLLECTIVE BARGAINING 157 

both employers and employees were nominated by the regis- 
tered unions of employers and employees within the district. 
The court of arbitration consisted of one supreme court judge, 
assisted by one member nominated by the registered unions 
of employers and one member nominated by the registered 
unions of employees. Neither the boards of conciliation nor 
the court of arbitration was authorized to receive any de- 
mands except from unions registered under the act. A de- 
mand received from a registered union, either of employers 
or of employees, must first pass before a board of conciliation, 
but if the award was unsatisfactory to either party an appeal 
could be taken to the court of arbitration, whose award was 
binding. During the hearings and until the expiration of the 
award it was unlawful to strike or lock out. 

The experience of twenty years has not changed materially 
the court of arbitration, but the boards of conciliation have 
been transformed. They were always a cause of irritation 
and legislative tinkering, as they seem to have been from 
the beginning little more than boards of argumentation. 
Being appointed by districts rather than by trades, their 
members had no expert knowledge of the particular disputes 
brought before them. In the present law of compulsory arbi- 
tration, enacted in 1908, the machinery of the boards in the 
Canadian disputes act was applied. Commissioners of con- 
ciliation are appointed who receive appeals and who appoint 
advisers nominated by both parties, who must be men with 
practical experience in the trade concerned, either as em- 
ployers or employees. This system has proved to be more 
successful than the earlier system. 

As to strikes and lockouts, the first act, on the face of it, 
implied an equal restriction on employers and employees. 
But, as employers did not appeal to the court, and as the 
registration on each side was voluntary and could be with- 
drawn on short notice, the act meant for the employees vol- 
imtary arbitration with an enforceable award. This worked 
smoothly up to 1906 while wages were rising and the coercion 
of the act was all upon the employer. 

But the illegal strikes of 1907-1908 caused Parliament to 
increase the penalties for strikes by a provision forattach- 
ment of wages, to levy comparatively heavy fines on unions 



n 



sp 






is8 PRINCIPLES OP LABOR LEGISLATION 

whose members struck, and to penalize all strikes or lockout., 
whether of registered unions or not. which were made withoS 
sufficient notice m public utilities and in certain industrie the 
steady continuance of which is affected with a public interest 
This was adapted from the Canadian disputes investigSact 
^.TJ^ Y waterside stnke of 1913-1914 caused Parlia- 
ment to apply a somewhat similar provision to all strikes or 
^ckouts in all industnes. For unregistered unions the stAe 

artXsteTrSiter ''"'''''''■ '^ ^^^^ ^'^ 
As far as one can judge ^ the enforcement of penalties for 
stnkes and lockouts has been pursued coolly and'Jers sten % 
under a system of moderate fines. Half the strikes which have 
occurred are perfectly legal strikes^trikes of unregisterld 
umons-but there have been a number of serious illegal strikes 
The waterside stnke of 19x3-19x4 started with unfons which 

action to tt "'''' '" ''"^^ ""^ ^P^^^^ by sympathetic 
action to other unions registered under the award, which 

therefore had no nght to strike. New Zealand has not 
achieved industrial peace. One might question whe^er a 
system m which it is illegal for some unions to str^e and 
legal for others can ever be satisfactory 

The act of 1894 in New Zealand recognized registered 

could appeal to its protection. This remains true for the 
emp oyee under the latest amendment, but the individual 
employer now may register. uiviuuai 

Though the first act contained no reference to preference 
to umonists this preference was granted in the awards as 
early as 1896 and was incorporated in the law of 1900 In the 
eariier awards preference to unionists simply meant that if 
there were a vacancy a union man must be given preference 
over a non-union man of similar ability. In the later awards 
preference to umonists has become equivalent to a closed shoo 
for an employer is ordered to discharge a non-union man in 
favor of an unemployed union man. Union preference is cus- 
tomanly granted where the union can show that it had a 
Strong org anization previous to the dispute. 

debari""^ ^^""""'^ ^""'^^^^ "P^"' government reports and parUamentary 



COLLECTIVE BARGAINING 159 

With the right to strike taken away, the problem of pro- 
tectirtg labor leaders against victimization has consumed con- 
siderable attention both of the courts and of Pariiament 
without results satisfactory to the unions. Provisions in re- 
gard to victimization have repeatedly been changed. Some- 
times the burden of proof has been put upon the employer 
sometimes upon the employee. ' 

Registered unions, therefore, have gained a preference 
which amounts ahnost to a closed shop and some protection 
against victimization, but at the expense of very large con- 
trol through court decisions. Initiation fees, membership 
fees, fines, procedure of unions, relations to other unions 1 
all have been brought either within the awards or within other 
court decisions. A recent decision which applies, however, 
to all unions, whether registered or not, declares that union 
funds may not be used for political purposes.^ Thus the 
government makes politically innocuous the labor union which 
it encourages. 

It might be answered that a registered union is free to 
cancel its registration and thus to escape control by the 
government, if obnoxious. But both in the strikes of 1908 
and in the strike of 1913-1914 the employers coerced the em- 
ployees into registering under the act by refusing to recognize 
any union which had not registered. This practical coercion 
which seriously restricts the apparent voluntary character 
ot the law on the side of unions, is at present the chief cause 
tor complaint by labor leaders. 

Where arbitration is voluntary, the awards represent an 
adjustment only between the demands of the two parties and 
are based on their relative strength. With the element of 
coercion the third party, the public, enters to determine that 
the awards shall not be inconsistent with its notions of a 
proper standard of wages. As shown above, compulsory ar- 
bitration in New Zealand has been largely voluntary on the 
part of the employees. Decisions, therefore, have taken into 
account little more than the respective demands of the two 
parties. But in two respects there has been a change of policy 
Union tac tics and the eariy awards limited the proportion of 

l^ew Zealand, Journal of the Departrneni of Labour, ]anua.ry,iQiA n ^ 
» ParUamentary Debates, 4th Session, 1914, pp. 65^65. ^^' ^' ^' 



h 
U 

II 



i6o PRINCIPLES OF LABOR LEGISLATION 

apprentices. The later awards generally specify no limit, but 
very sharply raise the wages of apprentices. The public pur- 
pose of open opportunity is thus subserved without bein^r 
turned to the pnvate end of the substitution of apprentices 
for journeymen. Again, the earlier acts allowed slow workers 
to receive less than the minimum wage only with the consent 
of the secretary or president of the union. This was changed 

wo£ '^'''^ ^ ^^^^^ ''^'''^ ^"^ ^''^''^ P^"™^" ^° ^^^^ 

The law was originally passed by the Liberal Party, favored 
by the labor unions, but opposed by the employers. In the 
cnsis of 1908 the Liberal Party revised the law against the 
opposition of a portion of the Refomi Party (the chief opposi- 
tion party) and of the Labor Party. This revision the em- 
ployers favored. In the debates in Parliament the leader of 
the opposition (later the premier) declared himself against 
compulsory arbitration, but in favor of an act somewhat 
similar to the Canadian disputes act. During the strike of 
1913-1914 the Reform Party, later in power, declared in favor 
of compulsory arbitration and added to the law amendments 
which were distasteful to the Labor Party. At the present 
time (1920). however they differ in details, all parties in 
Pariiament are committed to the principle of compulsory 
arbitration the only opposition being from groups not yet 
represented in Pariiament. like the Socialists and Syndicalists 
New Zealand was not exempt from labor troubles durinir 
the war Whereas the arbitration court made seventy-one 
awards for the year ending March. 1915, this figure was raised 
to 168 for the year ending March. 1917.1 It is reported that 
stnkes during 1917-1918 were more than quadrupled over the 
preceding year, and at least twelve of these stoppages were 
senous in extent.^ Neariy all strikes were among the un- 
registered umons. Observers of the situation point out that 
It is now the tendency for workers to demand direct negotia- 
^on and for employers to refer disagreement to the court. 
The fact that the court is finding it difficult to enforce penal- 
ties on the unions contributes to the dissatisfaction. 

By far the most cogent explanation of the sharp rise in the 

' ^f^ ^^a/a;uf Oficial Year Book, 1915. p. 758; 1917, pp ^7^,-7^. 
» Chrutian iicicnce Monitor, September 16. 1919, p. 5. ^^' ^'^ ^^^• 



COLLECTIVE BARGAINING 161 

number of labor disputes was the inability of the court to 
review wage awards to keep pace with increased costs of living. 
Pariiament remedied the situation in 19 18 by amending the 
act, granting the court power to reconsider awards where 
wages originally fixed had become inadequate owing to war 
prices. Despite legislative remedies of this comparatively 
minor character, union sentiment against the court is appar- 
ently on the increase, particulariy among unregistered unions 
which object to the coercive efforts of the employers to bring 
them under the act. 

Turning from New Zealand to Australia, three chief facts 
appear in the history of coercive legislation: (i) The laws were 
enacted and administered in the presence of a large labor 
party; (2) two systems, compulsory arbitration and wage 
boards, have grown up side by side, until, in several of the 
states, the two have merged; (3) Australia, as a federal com- 
monwealth, has had both federal and state courts of arbitra- 
tion. It has been one thing to enact and administer laws of 
compulsory arbitration in the presence of an insignificant labor 
party, as in New Zealand. It has been very different to do 
the same in Australia, where the Labor Party was first a large 
third party, later a large second party, and in September, 
19 1 5, was in control of the Commonwealth and the majority 
of the states. 

The period of the strikes of 1890-1893 was a period of ex- 
traordinary growth of a socialistic Labor Party. In 1890 
there was but one labor member in all the legislatures of 
Australia. In 1893 there were eighty in the lower houses.* 
The members of the upper houses are elected or selected under 
restrictive conditions. 

This movement was a flash in the pan, but with the creation 
of the Commonwealth in 1899 a much more solid labor move- 
ment developed. There was a labor ministry for a few months 
in 1904, another labor ministry in 1910. just barely defeated 
by the popular vote of 19 13. Again, during the European 
war, there was another appeal to the polls and, upsetting all 
precedents and marking the distinction between the Austra- 
lian labor movement and labor movements elsewhere, the 

' St. Ledger, Australian Socialism, 1909, p. 56. 
H 






I a <i 



i 1^^ 



16. PRINCIPLES OF LABOR LEGISLATION 

South vc^s^rs^-^Aust^^^^^^ 

idrge Slate, Victoria, remained anti-labor WifV, uu 

if an anti-labor party controls ^ ^''^ employer 

arbitration. Here we may contrast the workines of thl mTnT 

board of .8,3 on the existenc^ oftwSfaS fntSr 
The minunum wage bill, as originally introduced aDoied™, 

tlZlZTnt'^'f-'''^'' ^°' ''^ benefit r£r£ 
fin.7l„ ^^- ^'^ '"^''"" ^^S« conditions. The act as 

Ployers. The employer had votes in proportion t^hi.lr" 
age number of employees The v^.ZuT^ . ^^^''' 
hours, and certain other matters b^^^^^^ ^^^^' 

preference Thic ^ Jfl ^4 f f ' • ^ ^°^^^ "^^ ^^^^^ union 
preterence This method of election of representatives brf^o 
^cajy created state unions of employees and^empLyer "^^he" 
method proved unsuccessful. The elected employes and 



COLLECTIVE BARGAINING 



163 



employers were too much committed to their electors. In the 
present system the employers and employees on the board are 
appointed, presumably from the more reputable employers 
and less militant employees. Decisions are based on what 
the more reputable employer pays and are designed to pro- 
tect him from unfair competition. In fact, it was stated in 
pne of the laws, since amended, that wage-board decisions 
should conform to what was "paid by reputable employers to 
employees of average capacity." This has gradually brought 
employers to favor the law. The law also has usually been 
fayored by the Labor Party. It does not take away the 
right to strike, but provides such a ready substitute that 
Victoria, more than any other of the Australian states, can 
claim to be a "country" almost "without strikes." 
^ The original wage boards were created in industries noto- 
rious for sweated labor and brought rapid improvement in the 
condition of workers. But wage boards have since greatly 
increased in number and have been extended to industries 
where wages are high and labor is organized. To mark the 
change of purpose in the creating of new wage boards it is 
sufficient to say that two of the new boards of 19 12 were 
created against the protest of the labor members of Parlia- 
ment, one of them at the petition of the employers, and that 
another wage board was given authority only over men 
workers because the women petitioned not to be brought 
under it. The wage-board system of Victoria, therefore, has 
been extended beyond its original purpose and has become a 
method of protecting reputable employers from unfair com- 
petition and insuring industrial peace by providing a ready 
means of adjustment of grievances. 

Turn now to the turbulent history of New South Wales. 
Before compulsory arbitration was adopted, New South Wales 
was much more subject than Victoria to serious strikes, and 
such it has remained. This one state furnishes more than half 
of the days lost by strikes in all of Australia. ^ Compulsory 
arbitration cannot be said to have increased such disputes, 
but simply not to have stopped them. After a futile volun- 
tary arbitration law of 1892, New South Wales passed its first 

^ Australia, Commonwealth Bureau of Census, Labour Bulletin No. 4 
February, 19 14, p. 262. * ^* 





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' 


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1 




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i: 




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1 

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1 

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164 PRINCIPLES OF LABOR LEGISLATION 

compulsory law in 190 1. This act was especially important 
because on it was based the present Commonwealth act of 
1904. Here was first introduced the unique feature later 
copied m the Commonwealth act, that the court itself must 
give Its consent before any prosecution for a violation of the 
nature of a strike or lockout could be commenced. That 
consent was not frequently granted. For the rest, the act 
provided for a single court with final determinations on all 
matters within the scope of the act. Preference could be 
granted to unionists. 

The act expired in 1908. The single court had not disposed 
of the cases brought before it with sufficient rapidity. The 
anti-labor ministry in power at that time adopted a compre- 
hensive system of wage boards modeled after the Victorian 
system, whose determinations were subject to appeal to a 
special court of arbitration. All strikes were declared illegal 
A system of fines was adopted to reach the union funds 
Strikes, ahnost of the character of rebellion, followed, and 
the next year the same ministry rushed through a bill ap- 
plicable to strikes in certain necessary industries, like coal 
mmmg. These provided a penalty of not exceeding twelve 
months' imprisonment for instigating strikes and the same 
length of tune for mere participation in a strike meeting 
Immediately there followed a strike of all the coal miners in 
New South Wales. The situation became intolerable and the 
Labor Party came back to power. A new act was passed in 
1912.^ The severe penalties were withdrawn and special con- 
ciliation boards were created for mine workers. 

But neither under anti-labor ministries nor under the present 
labor ministry is New South Wales industrially quiet. Frantic 
assertion of authority has been followed by flabbiness in the 
administration of the law. This has resulted in a series of 
headless strikes. ^ The officials of the union, who might be 
prosecuted, make a show of dissuading the men, and the men 
stnke with neither political nor economic consequences, as 
the government will not prosecute the rank and file, and 
the emplo yer is bound by the awards. Practically the'com- 

1 Bas^ on the report of the American Trade Commission of the 
National Association of Manufacturers and the Australian Worker 
Jsydiity, • 



COLLECTIVE BARGAINING 



i6s 



pulsory arbitration system of New South Wales has become 
an imperfect wage-board system. 

Among the other states, Western Australia copied the New 
Zealand model in its first law of 1902. But, as in New Zea- 
land, the district conciliation boards proved a failure. In the 
laws of 19 1 2 they were abolished, and now the court may ap- 
point advisers or "assessors " to assist it. Interestingly enough, 
union preference, provided in the eariier law, disappears from 
the later one in spite of the fact that the new law was passed 
by a labor ministry. Reports of the actual working of the 
law are contradictory. The two other states, Queensland and 
South Australia, passed their first law in 19 12, in both cases 
by the anti-labor party. The Queensland law was the result 
of a street-car strike. The South Australian law is noteworthy 
for its severe and elaborate penalties for acts connected with 
strikes, such as picketing. These systems have been in exist- 
ence too short a time to show their actual working. 
^ Among the provisions of the new Commonwealth constitu- 
tion of Australia, adopted in 1899, was the right to create a 
compulsory arbitration court for interstate disputes. This 
right was made substantial in 1904 by the passage of the 
industrial arbitration act. The law was modeled on the 1901 
act of New South Wales. There was no system of wage 
boards, but simply a single coiurt of arbitration with its presi- 
dent the sole member. This cotu-t not only hears appeals, 
but can on its own initiative summon parties. Its determina- 
tions are final, but it "may" state a case to the high court 
(the supreme court of the Commonwealth) for advice. As 
in the New South Wales law, no prosecution can be started 
against any one for a strike or a lockout without the coni,ent 
of the court. Since this consent has never been given in 
the case of a strike the law is scarcely more than a minimum 
wage law. 

The scope of its power in relation to the state courts is, for 
us, the most interesting question. The law gives to the coturt 
power over "disputes extending beyond the limits of any one 
state "—except in regard to disputes in agricultural indus- 
tries. Subsequent acts have attempted to enlarge its scope, 
but have been declared unconstitutional, and when Justice 
Higgins, the president, has submitted a case to the high court. 



T 



I 



I 



x66 PRINCIPLES OF* LABOR LEGISLATION 

the rulings of the court have usuall^r been restrictive against 
the Commonwealth. Uncertainty has remained as to what 

vond thT ^f ^^^' '' '^^"y '"^^"t by "extending C 
yond the limits of one state." It is obvious that if a request 
for a change of wages paid by two different employers in two 
d^erent states constitutes a "dispute extending beyond the 
toits of one state" the Commonwealth court can strip the 
state courts of any real power. Already the court has deter! 
mined wages on the local tramways from Perth on Se wSt 
coast to Brisbane on the east coast. 

A curious distinction has been made by the high court bv 
which wage-board decisions of Victoria Le confide^rpart 
of the Victonan law and have restrictive power over ruling 

^thin^wT^''f •f'' S""""' °^ Arbitration, where applied 
within that state, while the awards of arbitration courts of the 

oowlr 'tv','!,' °°* '''^'^"' ^ '^^ ^"-l ''^-^ "° ««trictiJe 
W fh^f I K^^J" '^" ^° *^ employers of Victoria petition- 
mg that the bmlding trade laborers of that state be brought 
under a state wage board, as the latter were seeking with the 
building laborers of other states, to come under the bZmon! 

SeS toT* °V.' ^:^'''f°-- The Labor Party stand^om- 
mitted to the abolition of state courts of arbitration, their place 

Coi^ontTalth' ""^^"^^ ^°"^^ "^'^ ''^ -*^-*y °'*he 

t J!!'""^. ^r ff^^^""^' ^^"^ ^^" ^ "° 'egal strike in Aus- 
tralia outside of Tasmania and Victoria, since the compulsoit 

an^ZZu^'^r ■2''^'''' P^°^'^'°"^ against ^strik^ 
and lockouts. But with governments either purely labor or 
purely anti-labor, the administration of these laws seems to 
have been at least m New South Wales, either absurdly flabby 
or absurdly frantic. Instead of the gOveniment acting as a 
judge It becomes a plaintiff or defendant detennining the ad- 
ministration of law. 

.ul!!'!.7.^'''^T'^^^^P^^^'*""' ^^^^ ^^^" ^^^ked on both 
sides of the question of "union preference" than on any other 

Tm '"'z ^""T Pf^^^^^^^^' which is used as a harmless bait 
m New Zealand to bnng labor unions under the act, becomes 
a grave political question in the states and in the Common- 

P^ew bouth Wales has adopted union preference in its coili- 



CDLLECTIVE BARGAINING 



167 



pulsory arbitration acts. Rather curiously, Western Australia, 
with the strongest labor party of all the states, repealed, in 
1912, the provisions regarding union preference which had 
existed in the act of 1902. The Commonwealth court has had 
the right to grant union preference, but Justice Higgins, al- 
though once a member of a labor ministry, grants union prefer- 
ence, not as in New Zealand in cases where there is a strong 
union, but only in cases where a union has been oppiessed. 

In most of the states decisions are based on existing strength 
of the parties, and are similar, therefore, to decisions in a court 
of voluntary arbitration. But Justice Higgins of the Com- 
monwealth court has chosen for his minimum for the lowest 
paid laborers not the customary wage, nor a wage based on 
the strength of the union, but a wage based on a standard of 
living. This was most sharply shown in the decision in 19 14 
in the case of the dock laborers, where probable annual earn- 
ings, taking into account fluctuations of employment, were 
taken as the basis for an hourly wage.^ We have thus trav- 
eled far from voluntary arbitration or strikes, with wages de- 
termined by the strength of the two parties, far from minimimi 
wages based on what the more reputable employers pay, to a 
determination of wages on a consumers' standard of living. 
^ The recent history of the Commonwealth Court of Arbitra- 
tion has been marked by more explicit definition of its powers 
and the establishment of precedents. Two amendments to 
the Commonwealth act were made in 191 5 and 1918. The 
earlier amendment enabled a justice of the high court to decide 
finally whether a dispute extended beyond the limits of any 
one state, which was the chief limitation of the powers of the 
court of arbitration. The court affirmed the right of free 
bargaining in the case of workers refusing to accept hire at 
the minimum wage, when they believed their skill rated a 
higher wage. In the consideration of minimum wage princi- 
ples during the war, the court continued its policy of basing 
the minimum on a standard of living. The tendency, how- 
ever, was to make the wages of the skilled and unskilled 
workers meet; the basic wage was increased, but the second- 
ary wage was increased only by the pre-war margin between 

* New Statesman, June 6, 1914, p. 262. 




I 



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168 PRINCIPLES OF LABOR LEGISLATION 

tes ofte ""' rP^^^^«"-"y- One of the most fruitful 
oil^ren^^^^^^^ Power is its right to appoint "boards 

fLlT ? ' by means of which the meeting of representa- 
tives of unions with employers is encouraged Of latTthese 

of the Whitley suggestions in Great Britain 

wit W^^ ^^^ ^^'^ ^.^'^^ ^^^' ^^^'^ ^^^^ been but four strikes 
without previous reference to the court. The miners' strike of 

?otte";ttXte7: "tJ^ ^f ^^^^^ '^ ''^ aspecranlcould 
not be attnbuted to either the success or the failure of the 

act However, m June, 1917, the glass-bottle makers struck 

"urt'to caflT" '' 1'' ^°"^' ^^^ '""'y "^y '^^ P--- o "he 
iV.H ^ fif compulsory conference were the unions penal! 
ized and the men forced back to work on the employees' te™ 

Jox th^r^^'^''^' ''"^' "^ ^^^^-^^^ worke^rs^Au™ • 
191 7, the court was poweriess to act, inasmuch as the sto™ 

was not in direct violation of the tenns of its award T^e 

pnme minister sought to cancel the registration of the union 

IT was working. The pnnciple involved was whether the court 
had junsdiction over a sympathetic strike exten^ beyo^^^^^ 
the limits of any one state. The settlement finally made bv 

ToS^ VT''' ''''^''' ^^^ ^-'-- leaS denied the 
court s junsdiction over sympathetic strikes.^ A recmdes^ 
cence of this strike occurred in September, 1919. The union 
apparently harbored its grievance against he government for 
high-handed action in the previous dispute, and aS to this 
grudge some of the ''direct action" principles of syndicalist 
The union announced its strike to the court twentyS^urho^^^ 
beforehand, but in attempts at settlement of wa^ demands 

ou Tc^ess'lt^hV^T^^^^^^^ mltho7wTth! 

stni irnonht. K l\l "^ ""^ '^'^ ^^^ ^^^^^t^ ^^tcome was 
stU in doubt; but the instance indicates that labor's opinion 

of the court is not unanimously favorable, nor is the court's 
compulsory power always effective in serious disputes 

I'J^cinada and the United States. In Canada and the United 
States we again contrast the situation of the classes Australia 
iii;uledby a labor party. Labor in the United States has never 



COLLECTIVE BARGAINING 



169 



been a chief minority party. Where it has been a straight 
conflict between labor on one side and the other elements of 
society on the other side, labor has been defeated at the polls. 
Again, in regard to unionization, the unskilled and semi-skilled 
are unionized in but a few industries. Organized labor is. 
for the most part, organized skilled labor. Such labor is 
strong at industrial bargaining; it is weak only at the polls. 
It is therefore no blindness, but wise calculation, which has set 
the leaders of organized labor against government interference 
in industrial disputes. They could not count on controlling 
government, and they cannot predict what standard the gov- 
ernment would use in its awards. Unions which have gained 
for their members the more desirable conditions of labor are 
not willing to risk what they have gained for a doubtful stand- 
ard imposed by the outside public which might take into 
account the average and not the exceptional condition of 
labor. 

The employers, also, are afraid of compulsory arbitration. 
Through their voting rights alone they have even less power 
at the polls than the skilled workmen. Only by other means 
and by the aid of other classes can they control politics. 

There is but one class which would be likely to gain by en- 
forcing higher standards. It is the immense but miscellane- 
ous class of unskilled and semi-skilled men, and of women and 
children. They have no voice to make their wishes known. 

Against the joint opposition of organized labor and capital, 
compulsory arbitration makes little headway in the legisla- 
tures, in spite of the agitation that follows every great strike. 
Only occasionally has it come within the zone of practical 
politics. Once was when the anthracite coal strike of 1902 
put the voluntary system to a considerable strain. Arbitra- 
tion was accepted by the employers only after pressure was 
put upon them by the President of the United States. A 
second time was in 1920, when the Kansas agrarian legisla- 
ture, at a special session called for the purpose, adopted the 
first real compulsory arbitration law in the United States. 

In the report on the arbitration award governing the de- 
mands of the eastern locomotive engineers in 19 12, the chair- 
man, representing the public, advocated a permanent wage 
commission and added: "Is it unreasonable to ask that men 



m 



11 



iyo PRINCIPLES OP LABOR LEGISLATION 

in the service of public Utilities shall partially surrender their 
hberty m the matter of quitting employment, so ?hat the 
nation as a whole may not suffer disproportionately? " > The 
sharpest cnticsm of this doctrine came from the minority 
repor representmg the engineers: "To insure the pennanent 
industrial peace so much desired will require a broader states 
manship than that which will shackle the rights of a W 
group of our citizens." ' When the western railroad arbitrl! 
tion of 19 IS resulted unsatisfactorily to the brotherhoods the 
minonty, representing them, protested that "no act bv a 
governmental tribunal could more keenly bring home to the 
wage-earners of this country the consideration they might ex- 
pect if boards under govermnental supervision and control 
Tn Thit hl^'-^^i adjust their wages and working conditions 
on that basis. And so the matter in the main stands- the 
employers are dissatisfied with what they consider one-sided 
compulsory arbitration, the employees attack any greater 
measure of coercion. ^ gJcai-er 

One of the objections frequently raised against compulsory 
arbitration ,s its unconstitutionality in violation of the thi^ 
teenth amendment, in that it imposes involuntary servitude 
other than pumshment for crime. This objection is probabS 
not sound. We have already seen' that quitting work col 
lectively in pursuance of an unlawful agreement contains the 
elOTient of conspiracy which makes a strike essentially differ- 
ent from the ordinary quitting of work. Such a concerted 
agreement may be enjoined and punished as contempt, and 
there are sufficient precedents in the decisions to warrant the 
constitutionality of imposing penalties, should a compulsory 
arbitration law be shrewdly drafted and populariy supported 
It ,s not enough to raise the objection of constitutionality' 
for constitutions change with interpretation. The lasting ob- 
jections must be found elsewhere. 

While the United States has not gone very far with com- 
pulsory a rbitration, and Canada has not adopted it at all, 

» Report of the Board of Arbitration in the Matter of the Conlrm,^r.„ A. 
%Z t'^oT'" '^''""^' '"^ "^ Brotherhood of HocL'iTEn^L^rX 
2 Ibid., p. 123. 
' See "The Law of Conspiracy," pp. 101-104. 



COLLECTIVE BARGAINING 



171 



both countries have for several years maintained coercive 
features at three different steps in the procedure of govern- 
mental arbitration. These are compulsory investigation, the 
enforcement of awards which have been accepted by both 
parties, and the prohibition of sudden change of terms or 
sudden strikes or lockouts. 

The first is for the sake of official and public information. 
Directly it can have no effect on the bargaining rights ahd the 
bargaining tactics of the two parties. It is embodied in some 
of the state laws of voluntary arbitration and was a part of 
the federal act of 1888.^ But when it was proposed in the 
Townsend bill in 1904 to give that power again to a commission 
appointed by the President, the bill w^^ defeated, for at the 
hearing appeared against it the representatives of the Ameri- 
can Federation of Labor, the railroad bi'otherhoods, and the 
American Anti-boycott Association. 

In the Canadian industrial disputes investigation act col- 
lective bargaining itself was for the first time in North America 
made subject to the coercion of government. That act makes 
a sudden change of terms and a strike or lockout without 
sufficient notice unlawful in a certain class of industries 
affected with a public interest. The industries are public 
utilities and mines. In 1906, the year before its passage, 
there had been a prolonged strike in the Alberta coal mines 
which threatened a coal famine. The act makes it unlawful 
in such industries to change the terms of employment without 
thirty days' notice, and requires that, if within that time 
appeal is taken to the minister of labor, the terms of employ- 
ment shall remain the same pending an investigation. It is 
likewise unlawful to strike or lock out until after a hearing 
and findings by the investigating board. Then either a change 
of terms, or a strike, or a lockout is perfectly lawful. The act 
is coercive only against the sudden strike and the sudden 
change of terms. Upon application the minister of labor ap- 
points a board to which the ernployees nominate one man, 
the employers another, and the two men nominate the chair- 
man. In case of failure to nominate the minister does the 
selecting. 



* See "Mediation by Government," pp. 137, 138. 




'j^ 



lij 






« 



m PRINCIPLES OF LABOR LEGISLATION 

The success of the law seems attributable lareelv to th. 
conahatory efforts of the department of later to disHke for 
pubhcity rather than fear of penalty, and to the "exl tence of 
a means of negotiation rather than a means of restrictto„°' 
Prom the mcepfon of the act to December, 1916 there were 
204 Illegal stnkes or lockouts, two of them lockouts One 

St' either ^f '"t'* 1 '""'^ stoppages°"S;cuSd 
7T7LI 1^T^ '^'''^"2 ^^^ ^'"^ °f the act. An ille- 

(oL reoortW ?h ".*• ""f" '''' '^^ •« ^^t'"" taken t- 
tore reportmg the dispute to the board, or before th^ 

mvesfgation and report of a legally const" uted board 
Jnes of $766^" Th'^ ^'T" P---'--- with agg^ate 
em?4i"1he I^LTtri^ rTailr^^d" ^''^ 
generany favor it. Other classes ^f'Taborte'^Idt th^r 

orTo^h^^'^'? '^''P"*/' ^^* '"'*^"t'y appealed to the public 

was adopteTtt'f:';^ °' °''" '""f'- ""'^ °' '»« "^^'^^i-^ 
was aaopted the following year (1908) in New Zealand Ar^ 

BllsTsr/ol r"^ "7 ^^^^^^ ^^ ^^^ Tr^Hn-xpot 
liills based on its pnnciples were introduced into the ledsla 

tares of New York, Wisconsin, and California, but t wt 
not until the upheaval in Colorado in 1914- 915 thaH 

ZrTo^ '''""".^ P'^n^ ^" ^^^ U"^^^^ sL'es'e^body ng 

r J!'^^^'^ ""^ '^'? ' ^'""^^ *^ ^^^ Industrial Commission of 
Colorado, among its other powers, the power trjompel a 

award' wh eh TlT 1.'" "'"^i"^^ ^^^P^*' ^^ ^^ ^^I'L a^ 
award, which, like those under the Canadian act is nnt 

mandatory. As in the Canadian act. change of te^'s of em 

ployment, strikes, and lockouts are prohibited untiSr thii^^^ 

ing IS started withm the time of notice. Going beyond the 

the Colorado law covers all employees except those in 
domestic_ service, in agriculture, and in establishments em" 

2 Colorado, Laws 1915, C. 180. 



COLLECTIVE BARGAINING 



173 



ploying less than four hands. The law was first invoked ^ 
when a large cracker company announced a decrease of wages 
to take effect the following week. Some of the employees 
struck and the commission ordered the employers to submit 
their proposed reduction to the commission and the employees 
to resume work. Both sides obeyed.^ " No longer is a strike 
a private affair," was the editorial comment in a prominent 
Denver paper .^ Continued experience under the law causes 
the industrial commission to report that it has amply accom- 
plished the purpose for which it was enacted. The provision 
requiring thirty days' notice before a change in terms of em- 
ployment, "against which violent criticism has been directed, 
has saved the situation innumerable times." * During the year 
and a half ending with October, 1918, a total of 196 cases 
were recorded by the commission, which states that "there 
were not over half a dozen controversies or strikes occurring 
in this state since this commission has been in office which 
are not included" in this list. In connection with 145 of the 
196 cases reported on, the statutory thirty-day notice was 
given ; only nine strikes occurred without such notice. Fifty- 
eight disputes were settled by an award of the commission 
or after conference with it, and seventy-eight by the employ- 
ers and employees concerned, in many of which cases the 
joint conferences were suggested or directed by the commis- 
sion. In five cases commission awards were accepted by the 
employers but rejected by the men. 

The Kansas law of 1920 establishing compulsory arbitra- 
tion creates a "court of industrial relations," composed of 
three judges appointed by the governor for three-year terms. 
The manufacture of food products, the manufacture of "cloth- 
ing and all manner of wearing apparel in common use by the 
people," the mining or production of fuel, "the transportation 
of all food products and articles or substances entering into 
wearing apparel or fuel," and all public utilities and common 
carriers as defined under the general statutes of Kansas, are 
declared to be affected with a public interest and therefore 
subject to supervision by the state "for the purpose of pre- 

1 August, 191 5. * Rocky Mountain News, August 10, 1915. 

*Ibid., August II, 19 1 5. 

* Industrial Commission of Colorado, Secottd Report, 1918, p. 99. 



f 

•I 



If 



i 



174 PRINCIPLES OF LABOR LEGISLATION 

serving the public peace, protecting the public health, pre- 
venting industrial strife, disorder and waste, and securing 
regular and otderly conduct of the business directly affecting 
the living conditions of the people." In case of a serious 
controversy in any of the industries covered, the cotirt of 
industrial relations is authorized on its own motion, or on 
complaint of any ten tax-paying citizens in the locality, to 
svimmon the parties before it and to investigate the conditions 
of the industry. The findings of the court are to state 
"specifically the terms and conditions upon which said in- 
dustry . . . should be thereafter cohducted." The court is 
to "order such changes, if any, as are necessary to be made in 
and about the conduct of said industry ... in the matter of 
working and living conditions, hours of labor, rules and prac- 
tices, and a reasonable minimimi Wage or standard of wages." 
The standards set up, however, must be "such as to enable 
such industries ... to produce or transport their products or 
continue their operations and thus to promote the general 
welfare." The court is empowered to bring suit in the 
supreme court of the state to compel compliance with any 
of its orders. On the other hand, either party to a contro- 
versy which feels aggrieved at an order may sue within ten 
days to compel the court of industrial relations to issue a 
reasonable order. The right of collective bargaining is ex- 
pressly recognized, but strikes, picketing, boycotting, and 
similar acts to enforce labor's claims are forbidden. On the 
other hand, the discharge of employees for bringing conti*o- 
versies to the attention of the court, or for testifying before 
it, is prohibited, and the right of workmen to quit their em- 
plojTiient individually is not restricted. In case of actual 
suspension or limitation of operation in any industry covered 
by the act, the court may take it over and operate it during 
the emergency. Employers and workmen in industries to 
which the act does not apply may voluntarily submit their 
disputes to the court. To give the justices of the court con- 
tinuous first-hand acquaintance with the conditions of life 
and labor, they are authorized to make studies of industrial 
matters either within the state or elsewhere. Soon after the 
enactment of this measure in Kansas, efforts to secure similar 
legislation were begun in several other states. 



COLLECTIVE BARGAINING 
4. Unions of Government Employees 



175 



With the broadening scope of the state as an industrial 
epiployer, the collective bargain is, in some cases, entered upon 
even by the government with its employees. Here it presents 
a peculiar problem. The state ^ employs permanently larger 
bodies of workers than any other single employer.^ It is not 
subject to the competition that limits the private employer in 
his bargain with labor, and it is the medium through which 
the employee with the suffrage becomes in a measure his own 
employer. In such states as allow practically universal stif- 
frage it then seems less necessary for the public employee to 
use the weapon of strike or boycott employed by the private 
worker in his struggle for better wages and working conditions. 

(i) Recognition of Unions 

The right of the public employee to strike is not conceded 
by government, although in many countries the right of gov- 
ernment workers to organize is not denied them. Russia, 
under the old regime,^ Turkey,* and Roimiania ^ forbade con- 
certed action on the part of government employees under 
penalty, and even in republican France pubHc strikes are 
forbidden and punished," while the right of public employees 
to organize is at least doubtful and certainly restricted.^ Even 
in the United Kingdom, in Australasia and the United States, 



* Meaning the governmental unit, national, state, or municipal. 

* The United States government on June 30, 1914, had in its employ 
482,721 persons (United States Civil Service Commission, Report, 191 5, 
p. 6), approximately the same number as employed in the entire iron and 
steel' industry in the United States. To this number should be added 
the employees of state and local governments. 

3 Imperial ukase of December, 1905 {Bulletin qf the International Labor 

Office, Vol. I, 1906, p. 51). 

* Act of November 6, 1908 {Ibid., Vol. Ill, 1908, p. 331). 

6 Decree of December 19, 1909 i^lbid.. Vol. V, 1910, p. 437). 

* Order of March 18, 1909, relating to the organization of disciplinary 
committees of the outdoor staffs of the postal and telegraph service, 
providing penalties for "collective or concerted refusal" on the part 
of the staff. {Ibid., Vol. IV, 1909, p. 293.) 

' The minister of public education mamtained in 19 12 that under the 
law of 1884, which gave legal standing to labor unions, syndicates of 
teachers were not recognized, and such a syndicate was dissolved by the 
French government. See American Federationist^ February, 1913, p. 136. 



T. 



G .1* 

11 



176 PRINCIPLES OF LABOR LEGISLATION 

where government employees are nominally allowed to com- 
bine, trade unionism among public employees is not freely 
tolerated, there being still a general sentiment that opposition 
ot public employees to the government savors strongly of 
insubordination and unpatriotism.^ This feeling became very 
manifest in the summer of 1919, when efforts of the police 
and fire departments to organize in several American cities 
were met by the almost unanimous opposition of the authori- 
ties. In Boston the discharge of several policemen for join- 
ing a union affiliated with the American Federation of Labor 
led to a stnke in which the men were finally defeated and a 
new force was organized. About the same time, after police 
stnkes m London and other centers, the British Pariiament 
amended its police law to prohibit constables in England and 
Wales from joining or remaining members of any trade union 
intended to "influence the pay, pensions, or conditions of 
service of any police force." 2 Canada also, by a cabinet 
order, prohibited government employees from joining labor 
unions. The opposition to organization among civil employ- 
ees IS especially strong in France, where unionism has come 
to be regarded as a real danger, due largely to the great postal 
and railway strikes.^ At the same time the feeling of the em- 
ployees, as expressed in the international conference of public 
employees (August, 1907), is that the employee, even on public 
works, has a right to organize and strike as a means of obtain- 
ing desired concessions as to conditions of employment ^ In 
the United States, in 1902, the President by executive order 
amended in 1906, forbade all government employees directly 
or indirectly to solicit an increase of pay or to influence legis- 
lation in their behalf, save through the heads of departments 
in which they served. The protest of the unions ^ led to the 
act of 19 12, adopted as a rider to the Post Office appropriation 

2 9 and 10 George 5, C. 46 (1919). 

TT.rW ^^''°'' c^ °^^n^ P°'^^^ '^"^'^ ^"^ '^^ ^^"se may be found in J. H 
n^Tlev New Social Democracy 1911, pp. 122-143. Also see Graham Tay-* 

United States Department of Labor, Bulletin No. 88, May 19 10 p 867 



COLLECTIVE BARGAINING 



177 



act,* which permits post office employees to petition Congress, 
but forbids them to affiliate with any outside organization 
which imposes upon them an obligation to strike, or purposes 
to assist them in any strike against the government. ^ The 
executive order applies only to the activities of imions of pub- 
lic employees influencing Congress. It does not prevent or- 
ganizations within the department nor collective bargaining 
with the department. Such collective bargaining exists in a 
crude form in departments requiring skilled labor, and, in the 
case of the War Department, a complete scheme of arbitration 
has been worked out for the arsenal at Watertown, Mass., for 
all mechanical employees. This provides for a mediation 
board of an equal niunber of members elected by the employees 
and officers appointed by the commanding officer. There is a 
supreme mediation board at Washington, including repre- 
sentatives of the national unions to which the arsenal workers 
belong, and officers appointed by the Chief of Ordnance. 
Appeal lies to the Secretary of War.' A similar arrangement 
had been worked out in the street-cleaning department of 
New York in 1896.'* A further development in theMirection 
of employees' representation in the administration of govern- 
ment enterprises was introduced toward the end of 19 18 in 
the federal arsenal at Rock Island, 111. The men selected an 
advisory committee to cooperate with the War Department, 
were allowed to choose their own foremen, and had a voice in 
fixing piece-work prices. The experiment resulted, according 
to an official statement, in reduced expenses, increased pro- 
duction, and the development of a spirit of hearty cooperation 
among the workers.^ 

Other governments have found it necessary to adopt forms 
of collective bargaining with employees. In New Zealand 
the act of 1908 ^ provides that any society of railway employees 
may register and become officially recognized by the govem- 

* Congressional Record, Vol. XLVIII, 191 2, p. 11 8 19. 
2 United States, Laws 1912, C. 389, Sec. 6. 

' See O. O. 10225-582, "Instructions in regard to Hearings of Griev- 
ances, issued January 9, 1915, by the Chief of Ordnance to the Com- 
manding Officer, Watertown Arsenal." 

* See Commons, Labor and Administration, 1913, pp. 108-113. 

* John A. Fitch, "Manufacturing for Their Government," The Survey, 
September 13, 1919, pp. 846-847. 

' Bulletin of the International Labor Office, Vol. Ill, 1908, p. 312, 




*■ 



178 PRINCIPLES OF LABOR LEGISLATION 

ment. It may then enter into an * ' industrial agreement * ' with 
the minister of railways and, by registration, the articles of 
agreement are brought under government enforcement. Any 
appeal goes before the court of arbitration, consisting of a 
judge and representatives of the government and employees. 
After a hearing the award takes the form of a new compulsory 
agreement or an enforcement of the old. There are appeal 
boards for postal and telegraph employees,^ tramway em- 
ployees,^ and public-school teachers; and any ten or more 
teachers may organize a society, which, like the railway or- 
ganization, registers and has corporate existence.' 

The French plan for railway administration does not recog- 
nize an employees' union as such, but goes farther than the 
New Zealand scheme in arranging for cooperation between 
government and employees. Officials and workers are repre- 
sented on the various committees by their chosen delegates. 
Thus, in the councils and grades committee they help prepare 
reports and lists of premiums and promotions. As delegates 
they are part of the council of inquiry whose duty it is to 
express an opinion on all important questions of discipline 
submitted by the general manager."* In addition there are 
the representative district councils, which act as buffers be- 
tween the railway administration and the employees, make 
explanations, and administer necessary reprimands. Officials 
no longer reprimand workmen. Above the district councils is 
the Conseil de Reseau,^ the supreme advisory board of the 
whole state railway system. Of the twenty-one members 
appointed by the minister of public works, four are working 
employees.* 

In the Prussian railway system, autocratic as it is, there 

» Act of October 24, 1894. New Zealand Statutes, 1894, post and 
telegraph department act. 

'An act to amend the tramways act, 1908, New Zealand Statutes, 
1910, p. 370. 

»Act of October 31, 1895, New Zealand Statutes, 1895. School 
teachers in the United States have also organized and affiliated with 
a central federation. (American Federationist, January, 1903, p. 15.) 

* Report of State Railways Administration for 1909. (New Statesman, 
May 8, 1915, special supplement on "State and Municipal Enterprise," 
p. 25.) 

' Instituted by ministerial decree September 24, 191 1. (Ibid., p. 25.) 

« New Statesman, May 8, 19 15, spetial supplement p. 25, from EmiJ 
Da vies, The Collectivist State in the Making, 19 14. 



COLLECTIVE BARGAINING 



170 



have been sitice 1892 a series of advisory committees appointed 
by the minister of public works, whose express mission it is 
to smooth the working of the systetn by advising on all pos- 
sible points of friction between management and opei-atives.^ 
In the Swiss administration it is said to be an invariable cus- 
tom for the general secretary of the railwaymen's trade union 
to be appointed a full member of the board of administration, 
the supreme governing authority of the railway system.^ 

The foregoing are instances of formal agreements sanctioned 
by law or established by administrative order. Far riiore ex- 
tensive than these formal agreements is the unofficial recog- 
nition of unions, especially in England and the United States, 
where the head of the department deals with the representa- 
tives of the union and then issues orders conforming to the 
agreement but not mentioning the union. In this respect the 
collective bargain is similar to that of certain large railway sys- 
tems in the United States which nominally do not recognize the 
railroad brotherhoods, but actually issue orders, through the gen- 
eral manager, to Which the unions have previously consented. 

The advantage to government of formal recognition of 
unions consists in establishing permanent boards of arbitra- 
tion through which all grievances take their regular course. 
Without such boards the unions, through political influence, 
go over the heads of the departments to the legislative branch 
of government. This is proper chough, and, indeed, is inev- 
itable under universal siiffrage, no matter what restrictions 
the administration attempts to place upon them. But, with 
permanent boards of arbitration, practically all grievances and 
demands of the union can be settled within the department, 
leaving to the legislature (municipal, state, or federal) only 
the general policy of establishing standards of hours and 
wages ^ to be enforced through the arbitration boards. 

Outside the compulsory systems of Australasia, the final 
appeal from arbitration boards lies with the head of the 
department. In the war department it is the secretary of 
war. In the street-cleaning department it is the commissioner. 

» New Statesman, May 8, 191 5, special supplement, p. 25. See also E. S. 
Bradford, "Prussian Railway Administration," Annals of the American 
Academy, Vol. XXIX, 1907, p. 310. 



* New Statesman, May 8, 19 15, special supplement, p. 25. 
» See "The Minimum Wage," p. 198; "Hours of Labor," 



pp. 285, 286. 




u 






i8o PRINCIPLES OP LABOR LEGISLATION 

This IS essential in any voluntary system of arbitration in 
public employment. The unions retain the right to strike 
It they are not satisfied with the arbitration, and therefore the 
head of the department must finally decide as against a 
strike, m case arbitration fails. 

Another distinction between unions of public employees and 
those that deal with private employers is the attitude toward 
the closed shop. Government cannot discriminate between 
citizens as can private employers, and must maintain the 
open shop.i But, since government is not forced by com- 
petition to cut wages or lengthen hours, the unions do not 
need the protection which the closed shop gives them Yet 
under the compulsory systems of New Zealand and New South 
Wales, a preferential union shop is maintained, which ap- 
proaches the closed shop.2 

In the United States there is a semblance of union prefer- 
ence m the statutory requirements of four states ^ to the 
effect that the label of the typographical union be affixed to all 
public pnntmg. However, in Maryland this law seems to have 
been disregarded,^ while in the other states there have been 
no court decisions supporting the law, although it has been 
observed. In at least eight other states there have been court 
decisions adverse to discrimination in favor of organized labor 
in regard to either employment on public works or the use of 
the union label on public printing,^ on the ground that the re- 
stnction o f employment thus imposed is unconstitutional. 

* See decisions below. 

Vol^n ^f^"""^' ^""^ ""^ i?^^' ^"^^"^^'^ ^-^ ^^ International Labor Office, 

\ff.}h V^' P;^'^- ^^"^ ^"^^ Wales, industrial arbitration ict 
Acts of Parliament, 191 i-i 9 12 No 17 ^^-icttiuu dct, 

W^C^^&'Zf'^l^^^f ^""V 'P'!.';^^.- 78. S«=- 9; see also Laws 
1910, <-. 698, Art. 78; Montana, Revised Code 1907, Sec. 2S4; Nevada 

^ «s';Vs?I?e?»^ci^s'^d- r^^^^t"^^^^^^^^^^ ^ '^3. ^"^• 

Nashville, 109 Teiin 495 (,,,02). Michigan: Le4 f Detrok fiCrd of 
Education ,39 Mich 306 (1905) Geor^a: Atlanta .. Stein, luGa! 



COLLECTIVE BARGAINING i8i 

(2) Cooperative Employment 

An official recognition of organizations of public employees 
is found in the cooperative employment system. There are 
two principal methods, the first of which is the cooperative 
day-labor system, as applied in New Zealand.^ This is a time 
and piece work system under which men out of employment 
arrange themselves in small groups, averaging about fourteen 
(the groups were at first, and occasionally still are, larger), 
select one or two "headmen," and enter into contracts with 
the government for sections of public work at "schedule 
rates" based on the estimates of government engineers in 
charge of the work. The plan seems to have worked well in 
New Zealand, but not so well in New South Wales, where it 
has been confined to the lowest and least efficient stratum of 
workers. Under the plan the government is responsible for 
the checking up and actual direction of the work. Evidently 
the group is not a real labor union. 

The second form is found principally in France and Italy ,2 
where workmen organize their own groups and, as such, con- 
tract for government work. The group constitutes, therefore, 
not a labor union, but a union of labor contractors. The 
officials of the government are not in charge of the work, 
but they turn it over to the groups, the plan being a modifica- 
tion of the competitive contract system rather than a variety 
of direct employment. The government authorities favor 
these societies in the placing of contracts, and the result has 
been a steady and appreciable growth in their number and 
undertakings. 



* Great Britain, Board of Trade, Labour Department, Report on Co- 
operative Contracts Given out by Public Authorities to Associations of Work- 
men, Parliamentary Papers, Vol. LXXX, 1896. 

' Victor von Borosini, "The Italian Triple Alliance of Labor," Ameri- 
can Journal of Sociology, Vol. XIX, 1913-1914, p. 204 ff. 



CHAPTER IV 
THE MINIMUM WAGE 

Minimum wage legislation marks a new stage in the long 
line of attempts to equalize the power of employer and em- 
ployee in making the wage bargain. In contrast with con- 
ciliation and arbitration, either voluntary or compulsory, 
which take place only after a demand has been made by one 
party and refused by the other, minimum wage laws seek 
to regulate the wage rate before any dispute over the terms 
of the wage bargain has arisen. Moreover, interference by 
the state between the parties to the wage bargain through 
conciliation or arbitration usually implies the organization of 
the workers and the existence of collective bargaining. ^ But 
in any modem industrial community large numbers of un- 
organized workers are found, still bargaining individually, em- 
ployed at low wages and apparently unable to make any 
effective efforts themselves to improve their condition. If they 
are to be helped toward an equality in bargaining power with 
the employer, the state must take the initiative. This it does 
by setting standards below which wages may not be depressed 
— in other words, by passing minimum wage legislation.^ 

From a slightly different point of view the legal minimum 
wage fills a gap in our code of laws which protect the employee 
by regulating the conditions of employment. Minimum stand- 
ards for safety and sanitation have been enacted in many 
states and the maximum length of the working day has often 
been fixed. Such safeguards have long been familiar and are 
generally accepted as necessary and beneficial to the health 
and welfare of the workers. There exists also a considerable 



I The industrial courts of Europe, previously described, employ con- 
ciliation in both collective bargaining and individual contracts. 

\ Modem minimum wage legislation is not comparable to the mediaeval 
fixing of wages by justices of the peace, which prescribed not a minimum, 
but the actual rates to be paid. See "Coercion by Government," p. 152. 



THE MINIMUM WAGE 



183 



group of laws which determine Certain conditions of the wage 
payment. For instance, the weekly payment of wages may 
be required or payment in "store orders" may be forbidden, 
as described in Chapter II. But any legislative interfer- 
ence with the wage rate was long in making its appearance, 
though equally essential to a complete code of legislative 
protection for the woi-kers. Work may be done under safe 
and sanitary conditions for hours not too long, and payment 
of wages may be prompt and regular, but if the amount re- 
ceived is too small to secure the necessaiies of life the worker's 
health and welfare are menaced. Therefore, the same mo- 
tives which have caused most of our states to establish mini- 
mimi standards to guard the worker against unsafe and 
unsanitary conditions have caused many of them to set up 
standards for protection against the evils of low wages. 

But whether one emphasizes the protection to health and 
welfare afforded by minimtun wage legislation or its equaliza- 
tion of the strength of the parties to the wage bargain it 
appears not as a novelty in legislation, but as ati extensioii of 
principles whose enactment into law is of comparatively long 
standing. 

I. Economic Basis 

That a large proportion of unskilled workers are paid wages 
far too low for decent self-support is a fact confirmed by many 
wage investigations and well known to those even slightly 
familiar with present-day industrial conditions. 

(i) Low Wage Scale 

Even before the era of unprecedentedly high prices ushered 
in by the war, it was the consensus of expert opinion that a 
weekly wage of $8 or more was necessary under urban con- 
ditions for the maintenance of a self-supporting woman in 
simple decency and working efficiency, and that a man with 
a wife and three children required at least $15 to $20 weekly 
for their proper support.^ Yet a study made at that time of 
women's wages in the United States concluded that 75 per 

»See Howard B. Woolston, "Wages in New York," The Survey 
February 6, 1915, p. 510. '^* 



f 



ft : 



I 



184 PRINCIPLES OF LABOR LEGISLATION 

cent, of female wage-earners received less than $8 weekly, 50 
per cent, less than $6, and 15 per cent, less than $4, and that 
these wages were further reduced approximately 20 per cent, 
through lost time and unemployment.^ The pay of unskilled 
male workers was at a correspondingly low level. Streightoff, 
in his discussion of American standards of living, estimated 
that at least six million adult men, married as well as single, 
received less than $600 a year, or $12 a week.^ More intensive 
investigations bore out these figures. The United States Im- 
migration Commission studied a large number of typical 
households representing both native and foreign-bom in six- 
teen leading industries. More than half of the male heads 
of families earned less than $500 a year, and nearly two- thirds 
less than $600.^ A Httle later the New York State Factory 
Investigating Commission examined the pay-rolls of over 
2,000 stores and factories during the fall, winter, and spring 
of 19 13-19 1 4. Out of 57,000 women and girls, approximately 
34,000, or 60 per cent., earned less than $8 in a typical week. 
Seven thousand out of 14,000 married men, or 50 per cent., 
earned less than $15.^* 

During the war the wage level was materially raised, but 
owing to the unprecedented rise in prices that accompanied 
the change it is doubtful whether real wages were materially 
altered for the better, except perhaps in a few war industries 
and in certain occupations covered by especially liberal gov- 
ernment wage awards. The United States Bureau of Labor 
Statistics estimated that the cost of a family's living increased 
80 per cent, in the chief shipbuilding centers of the United 
States between June, 19 14, and June, 19 19, and 70 per cent, 
in other localities. The "National Industrial Conference 
Board," which is a federation of several large employers* 
associations, and likely, therefore, to be conservative in its 
estimates, put the increase at 71 per cent, for the similar 



1 Charles E. Persons, "Woman's Work and Wages in the United 
States," The Quarterly Journal of Economics ^ February, 1915, p. 232. 
^ Frank H. StreightofT, Distribution of Incomes in the United States, 191 2, 

P- 137. 

3 Arthur N. Holcombe, "The Legal Minimum Wage in the United 
States," American Economic Review, 1912, Vol. II, p. 33. 

* Howard B. Woolston, "Wages in New York," The Survey ^ February 
6, 1915, p. 510. 



THE MINIMUM WAGE 



185 



period of June, 19 14, to July, 19 19. The National War Labor 
Board found in June, 1918. when the cost of living had risen but 
55 per cent, above pre-war levels, that $1,380 a year, or about 
$26.50 a week, was necessary for a family of five to maintam 
the "minimum of subsistence" in the large eastern cities. 
According to the price statistics just quoted such a minimum 
would have risen to $33.92 weekly in the summer of 19 19. 
On a similar basis the minimum "living wage" for a self- 
supporting woman, if assumed to be $8 a week in 19 14. was 
$14 in 1919. It was, in fact, estimated to be $15 by the 
Consumers' League of New York City in January, i9i9» and 
$16.50 by the District of Columbia Minimum Wage Com- 
mission in July of the same year. 

On the average, wages had failed to reach these standards 
in 1919, while prices showed few signs of falling, in spite of anti- 
"high cost of living" campaigns. The New York Industrial 
Commission, securing between November, 1918, and January, 
19 19, figures on the earnings of 32,000 women in the same 
industries which had been covered by the Factory Investigating 
Commission in 1913-1914, found that 60 per cent, of those in 
factories and 61 per cent, of those in stores received less than 
$14 a week. The average weekly wage for both sexes in a 
large nimiber of representative New York State factories was 
but $24.83 a week in September, 1919, while in eight large 
industries for which data were collected by the National 
Industrial Conference Board, the average weekly wage for 
male workers was $24.24 in September, 1918, and $23.37 in 

March, 1919. 

It seems, then, no exaggeration to say that the majority 
of low-skilled industrial workers in the United States receive 
wages too small for decent self-support. This fact explains 
the demand for miniminn wage legislation as necessary to 
social welfare; the causes for the low scale form the economic 
basis which determines the extent to which the demand is 
practicable and the legislative standards enforceable. 

(2) Economic Weakness of Low-Paid Workers 

The almost entire absence of strong labor organizations 
and collective bargaining among this group of wage-earners 



1 86 



PRINCIPLES OF LABOR LEGISLATION 



*^- 
tr 



IS an unportant factor in producing the low wage scale 
Many are women who are often members of a family group' 
unable to move from place to place in search of better oppor- 
turaties, but remaining at home to overcrowd the few lines 
of work available in a given locality. Then, too, the ma- 
jority of women workers are young and inexperienced and 
their frequent withdrawal from industry on marriage makes 

whole. It has been extremely difficult to form stable unions 
among women workers. Experience both in England and in 
this country shows that organization among low-skilled men 
workers is almost equally difficult. In the absence of collec- 
tive agreements It has sometimes been possible to compel the 
worke.^ to keep their wages secret. An Oregon department 
store, for instance, required each applicant for employment 
to sign an agreement which included a promise to "keep my 
salary confidential." > Such secrecy obviously makes it easier 
to depress wage scales. In the circumstances it is also not 
surpnsing that among this group of workers the relation 
between wages and productivity is not traceable, but that 
there are also great diflferences in wages for work that is 
apparently the same. Some fimis pay constantly 2c per 
cent more than their rivals for similar operations." ^ In the 
United States the situation, until the outbreak of the Euro- 
pean war, was further complicated by the stream of immi- 
gration,_ which furnished an abundant supply of cheapTaBbr 
and which put still another barrier, in the shape of divergent 
language and customs, in the way of union organization 

Another reason for the low wage scale, largely the result 
of the first IS the cutthroat competition of the workers 
1 for work Among the unskilled, unorganized workers, the 
wage that the cheapest laborer, such as the partially sup- 
ported woman, the immigrant with low standards of living or 
the workman oppressed by extreme need, is willing to take 
veiy largely fixes the wage level for the whole group 
^ ^'^''^ reason, the obverse of that just discussed, is the 

\^xf,T2t!'^ ^""'^ ^''^''" Comm,-««, Consumers' League of Oregon. 

,oJ'^rL^^%' f "^ ^"? ^"^^ ^-^""-y Investigating Commission 
1915. The Confectionery Industry," Vol. II, p. 312. ^'^misston. 



THE MINIMUM WAGE 



187 



A 



vl, 



absence of active competition among employers for workers. 
With a plentiful supply of the lower grades of labor continually 
seeking employment, the employer over long periods of time 
has felt no need to offer inducement in the form of highet 
remuneration in order to fill his shop. 

Moreover, a socially undesirable type of competition be- 
tween employers flourishes when the bargaining power of 
employees is weak. The encouragement of superior ability 
and invention has always been pointed out as one of the 
chief advantages gained by the community from the com- 
, petitive system of production. When an employer can hire 
workers for practically his own price, he can be slack and in- 
efficient in his methods, and yet, by reducing wages, re- 
duce his cost of production to the level of his more able 
competitor. 

Minimum wage legislation, therefore, may answer the de- 
mands of social policy in two ways. By setting a barrier 

f below which wages may not fall, it li^htensjthe pitiful poverty 
and prevents the degeneration in body arid spirit of those 
forced to live on a wage too small to supply the necessaries 
of life. Competition among them no longer takes the form 
of bffering to work for lower wages, but that of developing 
greater efficiency. At the same time employers are forced 

^y^ to compete in efficiency of management, thus securing for 
society at large the many advantages of constantly improved 
methods of production. Minimum wage laws attempt neither 
to destroy competition nor to fix Wages by law; they merely 
seek to set the lower limits to both in the interests of society 
as a whole. 

2. Historical Development 

(7) Australasia 

Australasia is the birthplace of minimtmi wage legislation. 
Though it is a new and prosperous country, as long ago as 
the 'eighties the sweating system, with its evils of low wages, 
long hours, and unsanitary conditions, was discovered to be 
alarmingly prevalent. The Age, the leading Melbourne news- 
paper, carried on a crusade against these conditions, and a 



n 
'i 



1 



!i ■ 



l-i 



188 PRINCIPLES OF LABOR LEGISLATION 

royal commission was appointed whose report in 1884 showed 
that hours were excessive and that wages were constantly 
reduced by the miserable rates paid to home workers. Public 
indignation was aroused until finally determined efforts were 
made to overcome these evils. 

In 1894 New Zealand passed a law providing for the com- 
pulsory arbitration of labor disputes, which, while primarily 
intended to preserve industrial peace, may also be used for 
the prevention of sweating. The district conciliation boards 
established by this law have authority to fix minimum wages, 
and if sweated workers want their conditions improved they 
need only file a statement of their claims in the office of the 
nearest conciliation board. By means of this machinery 
underpaid workers, men more often than women, have secured 
wage increases. 

However, the first Australasian law whose main purpose 
was to end sweating was passed by Victoria two years later, 
and since it is the Victorian method which Great Britain 
and the United States have adopted, the system deserves 
consideration at length. The public feeling against the 
sweating system in Victoria had resulted in the formation 
of an Anti-Sweating League. Largely as a result of the 
league's efforts and in spite of bitter opposition from the 
employers under the leadership of the Victorian Chamber of 
Manufactures, Victoria passed the first minimum wage law 
in 1896. Sir Alexander Peacock, originator of the system 
and later minister of labor in Victoria, has written: *'lt 
was alleged, first, that all work would be driven out of the 
country; secondly, that only the best workers would be em- 
ployed; and thirdly, that it would be impossible to en- 
force such provisions at all. . . . However, the government 
managed to carry the bill and the wage-board system was 
inaugurated." ^ 

The law required that representative boards fix minimum 
wages in certain industries designated by the legislature. 
Moreover, being frankly an experiment, the act was to be en- 
forced for only four years. Wage boards were first appointed 

. \^),^-}^^^^ond, "The Minimum Wage in Great Britain and Aus- 
tralia. Atmals of the American Academy of Political and Social Science 
July, 1913, p. 28. 



THE MINIMUM WAGE 



189 



in the six especially sweated trades of boot-making and 
baking, which employed mostly men; clothing, shirt-making, 
and imderclothing, which mostly employed women; and in 
furniture-making, in which the competition of Chinese labor 
was depressing wages. In 1900, when the first minimum 
wage law came to an end, the government brought in a bill 
providing for the extension of the wage-board system to 
other trades. The Victorian Chamber of Manufactures pro- 
tested violently, urging, and with good reason, that the gov- 
ernment's proposal meant the extension of the system to 
trades in which there was no evidence of sweating. How- 
ever, the government showed that it had received a nimiber 
of applications from employers, asking for the appointment 
of special boards, and that sweating had disappeared in the 
trades in which boards had been established. Accordingly, 
the bill was passed and an extension of the system was begun, 
which continued from year to year until at the end of 19 16 
236 separate boards had been appointed, fixing minimum 
wage rates for 150,000 employees in a state whose total 
population is less than a million and a half. Minimum wage 
rates have been established for all the important manufacturing 
occupations in the cities and also for street railways, mer- 
cantile and clerical employraents, mining, and even for cer- 
tain agricultural workers. The wage-board system is no 
longer regarded as an emergency measure intended to secure 
a living wage where conditions are exceptionally bad, but as 
a satisfactory method of fixing the standard wage in any 
trade. The act was again renewed in 1903, and in 1904 was 
made permanent. While the scope of the law has been widely 
extended, the opposition of the employers has decreased, until 
in April, 1912, M. B. Hammond, of the Ohio Industrial Com- 
mission, as a result of first-hand investigations, reported that 
both employers and employees "are now practically unani- 
mous in saying that they have no desire to return to 
the old system of unrestricted competition in the purchase of 
labor." 1 

South Australia, Queensland, New South Wales, and Tas- 
mania, between 1900 and 19 10, also adopted minimum wage 



» Ibid., p. 35. 



igo PRINCIPLES OF LABOR LEGISLATION 
legislation, but in close relation to their systems of compul- 

o'^.u^xf ?*'''!1-' ^"^ ^^''^^ Australia. Queensland, and New 
South Wales, arbitration courts," with coercive powers in 
settling labor disputes, serve ^ courts of appeal from the 
decisions of minimum wage boards. Tasmania forbids strikes 
wherever the award of a wage board is in force. From the 
first all these states made minimum wage legislation appli- 
cable to practically the whole range of employment and not 
merely to sweated trades. 

(2) Great Britain 

One of the most important developments in the En<^lish 
social reform movement during the early years of the twentieth 
century was the acceptanpe of minimum wage legislation as a 
practicable policy. While twenty ye^rs ago the fixing of 
minimum wage rates by law was apparently outside the re^lm 
of practical politics, it is advocated in Great Britain to-day 
not only by the Labor Party, but also by the Liberals and an 
influential group of Unionists. 
// Among the chief reasons for this development of public 
; j policy was the increased public knowledge of conditions among 
sweated workers. Investigations showed that large numbers 
of low-skilled unorganized workers were receiving less than 
the wage necessary for the maintenance of mere physical 
efficiency. Attempts were made to extend trade unionism 
among them, so that they might raise their wages as more 
skilled workers had done, by collective bargaining. But the 
formation of strong unions among these sweated workers w^is 
generally found to be impossible. TJie market for their labor 
was chronically overstocked and the struggle for bare exist- 
ence was too severe to permit the development of stable 
organizations. The public was aroused to this menc^ce of in- 
sufficient wages, which its victims themselves seemed power- 
less to remedy, mainly through the efforts of the National 
Anti-Sweating League, which, with the Labor Party and cer- 
tain other organizations, vigorously urged the adoption of 
minimum wage legislation. The agitation resulted first in a 

» Sec "Development of Coercive Intervention," pp. 162-166. 



1^ ' 



r 




THE MINIMUM WAGE 



191 



parliamentary inquiry and finally, in 1909, in the passage of 
a trade boards act, modeled on the Victorian statute, which 
went into effect the following year. 

This law provided that wage boards may be established by 
order of the board of trade, subject to ratification by Parlia- 
ment, for all employees in any industry in which the prevail- 
ing rate of wages is "exceptionally low as compared with 
that in other emplo5mients." ^ The first four trades regu- 
lated were tailoring, paper - box making, the finishing of 
machine-made lace, and the manufacture of certain kinds 
of chain, industries which employed altogether about 250,000 
operatives. By 19 13 the successful operation of the law was 
so generally recognized that the formation of boards^ was 
ordered in five additional trades: sugar confectionery and 
food-preserving, shirt-making, certain kinds of tailoring, hol- 
low-ware making, and cotton and linen embroidery, employing 
nearly 150,000 more workers. The trades covered employ 
chiefly women, and before regulation the wage conditions were 
flagrantly bad. 

Thfe first extension of the wage-board system outside the 
sweated trades was also exceptional, but for an altogether 
different reason. There had been great unrest among the 
coal miners during the winter of 1911-1912, culminating in a 
strike in the spring of 19 12 which paralyzed industry. One 
of the men's principal demands was a flat rate weekly mini- 
mum wage. In the interests of industrial peace the govern- 
ment was forced to yield to the principle of this demand by 
passing a measure establishing representative district boards 
to fix minimum wages and other working conditions. While 
the operation of this act is said to have proved less satis- 
factory than the workings of the trade boards, it presents 
the issue of wage regulation in a wider form, not simply as a 
means of protecting the sweated workers at the very bottom 
of the industrial system, but as a supplement to voluntary 
collect ive ^ bargaining for a comparatively well - placed. 
economic group, the skilled men workers in a well-organized 
trade. 

Up to the outbreak of the European war, then, English 



* Trade boards act, 9 Edw. 7, C. 22, Sec. i (2). 



.^^' 




192 PRINCIPLES OF LABOR LEGISLATION 

minimum wage legislation had reached some of the hardest 
pressed and some of the most fortunate groups of industrial 
workers. Throughout the war, numerous adjustments were 
made in the awards for the nine sweated trades which had 
been dealt with under the original act, but the increases 
hardly kept pace with the ever-soaring cost of living, the 
boards increasing rates only "by so much as they thought the 
industries concerned would be able to support after the war." ^ 
But in the latter years of the war, two important extensions 
of minimum wage legislation were made, in part with a view 
to stabilizing wages during the transition from war to peace, 
which went far toward repeating in England the line of de- 
velopment which had been followed in Australia, and which 
transformed the trade boards from a special device for remedy- 
^ ing unusually bad conditions to a common method for fixing 
wage-standards for all wage-earners. One was an amend- 
ment to the trade boards act which, in brief, provided that 
boards to fix minimum wages might be formed wherever 
earnings were "unduly" low,^ instead of "exceptionally" low, 
as under the original law. Before the war, the general wage 
level had been so low in certain groups of occupations that it 
was often difficult to prove that they were "exceptionally" 
so in cases where it was desired to take action. Provision 
was also made for having the awards come into force more 
quickly and for removing various administrative difficulties 
which had been experienced. The amending act likewise 
made the boards a possible instrument for industrial self- 
government by empowering them to make recommendations 
to government departments concerning improvements in in- 
dustrial conditions in their trades and by requiring the gov- 
ernment to consult them on industrial questions affecting the 
workers whom they represent. Following the signing of the 
armistice the establishment of new trade boards proceeded 
rapidly, and by September, 19 19, they were in operation in 
six additional industries,^ in process of organization in nine 



* G. D. H. and M. I. Cole, The Regulation of Wages during and after the 
War, p. 4. 

2 8 and 9 George 5, C. 32 (1918). 

' Boot and shoe repairing; brush and broom making; corset making; 
laundries; paper-box making; tobaeco. 



THE MINIMUM WAGE 



193 



more,^ and the first steps toward forming them had been 
taken in a number of other occupations. 

The other important extension of the minimum wage prin- 
ciple was the establishment of a minimum wage for agricult- 
ural laborers in connection with the corn production act, and 
the further provision that the minimum rate fixed by the law 
might be varied for different localities by representative 
"agricultural wages boards." The main purpose of the act 
was the stimulation of grain production through guaranteeing 
fanners a minimum price for their wheat for a considerable 
term of years. A demand was then made that wages in turn 
be guaranteed. Under the act the wage boards had, by the 
autimin of 19 19, fixed minimum rates for men and women, 
boys and girls, through practically the whole of England and 
Wales. The minima for adult males tended to be higher than 
the rate tentatively fixed by the law itself.^ 

A sweeping extension of the minimtun wage principle was 
foreshadowed by the introduction of a government bill for 
the fixing of minimum time rates in all occupations, which 
had been recommended by the national industrial conference 
called by the prime minister in March, 19 19, and which was 
still pending in Parliament early in 1920. 

(j) Other Countries Abroad 

During the war period four other countries and four Cana- 
dian provinces passed minimum wage legislation, the laws in 
most cases applying only to home workers. France adopted 
the principle of the minimimi wage in 191 5 for women home 
workers in the clothing industry.^ The law provides for the 

* Aerated waters; fur; hair, bass and fiber; hats, caps, and millinery; 
jute, rope, and twine; retail bespoke tailoring; wholesale mantles and 
costumes; women's dressmaking; light clothing. 

2 Under the munitions of war acts (19 15, 191 6, 191 7) extensive govern- 
ment wage fixing was carried on in the war industries. In settling trade 
disputes, arbitration boards determined wages for all classes of workers. 
The ministry of munitions made many wage awards for women and 
unskilled men. The former, however, should be classed with compul- 
sory arbitration, and in the latter case actual rates, and not minimum 
rates, were generally set. The wages (temporary regulation) act main- 
tained war wages until 1920. 

' United States Bureau of Labor Statistics, Monthly Review, December, 
1915. PP- 36-41- 

13 



194 PRINCIPLES OF LABOR LEGISLATION 

establishment of a representative wage board in each of the 
departments into which the country is divided, which is to 
fix minimum wage rates for all female home workers on cloth- 
ing, hats, shoes, white goods, embroidery, laces, and artificial 
flowers. Boards had been set up and had made wage awards 
in twenty-two of the eighty-seven departments by May, 1916.^ 
Toward the end of 1916 several strikes for increased wages 
on account of the high cost of living took place in munition 
factories. To meet the situation, strikes and lockouts were 
forbidden and a system of arbitration boards was set up by 
presidential decree. Among the duties of the boards was the 
fixing of minimiun wage rates in each department. It was 
stipulated that the minima must always be sufficient to per- 
mit the average worker to earn a living wage. By August, 
19 1 7, rates had been fixed in all the important industrial dis- 
tricts. Later, as the cost of living continued to rise, the true 
minimum wage principle was abandoned, and it was arranged 
that the basic rates should remain unchanged, and price 
increases should be met by a system of bonuses.^ ^ 

The Norwegian legislation also covers home workers alone, 
and is of a particularly tentative character. A law of Febru- 
ary 15, 19 18, created a home workers' commission or board 
to be in existence for five years, which may form representa- 
tive trade boards for the special industries or localities to 
investigate labor conditions in all places where home work is 
carried on and to fix minimtun wages in home work in the 
manufacture of clothing and articles of needlework. Other 
occupations may be added by the government. Tlie board is 
to make recommendations for a permanent law.^ The Argen- 
tine Republic is likewise reported to have enacted a law in 
19 1 8 providing for the establishment of trade boards to fix 
minimum wage rates for home workers.** 

Unempl oyment in the embroidery industry, due to the 

* United States Bureau of Labor Statistics, Monthly Review, September, 
1916, p. 77. 

'Mary Conyngton, "Women Munition Workers in France," United 
States Bureau of Labor Statistics, Monthly Labor Review, July, 191 8, 
p. 126, 

' United States Bureau of Labor Statistics, Monthly Labor Review, 
September, 1918, p. 680. 

* Great Britain, Ministry of Labor, Labour Gazette, February, 1919, 
P- 43- 



THE MINIMUM WAGE 



195 



I 



' 



effects of the war, was the indirect cause for the fixing of 
minimimi wage rates in that occupation in Switzerland. In 
order to relieve the distress of the employees the . federal 
council, in December, 19 16, created emergency fimds from 
which needy employees were to receive payments, the cost of 
which was to be assessed on the manufacturers. Some em- 
ployers attempted to cover the tax by reducing the wages of 
their workers and the council, in order to prevent this, issued 
an order fixing minimimi rates for the trade. ^ ' 

The four Canadian provinces of British Columbia, Mani- 
toba, Quebec, and Saskatchewan, all passed minimum wage 
laws in 19 18 and 19 19. The legislation applies to women and 
minors in all industries, though in Manitoba only the city is 
covered. Numerous wage awards were in force under these 
laws at the beginning of 1920, except in Quebec, where the 
law had been in effect only a few months. 

{4) The United States 

I In America a wide-spread demand for minimum wage legis- 
lation dates back to about 19 10. Two factors contributed 
to the rise of popular sentiment in favor of the legislation at 
* this time. One was the increased knowledge of conditions 
' ' among sweated workers, resulting from such investigations 
as that of the federal Bureau of Labor on Conditions of Woman 
and Child Wage-Earners in the United States. The other was 
> the successful operation of the British trade boards act under 
conditions not unlike those in our own country. 

In public employment, to be sure, wages in this country 
had for several years been regulated both by state laws and 
by city ordinances. Most commonly these regulations fix the 
wage rate ^ or require that "prevailing rates" be paid, which 

* United States Bureau of Labor Statistics, Monthly Review, Decem- 
ber, 191 7, p. 1 1 86. 

2 The New York City Board of Estimate showed a broad social point 
of view in its efforts in 191 5 to fix a just wage for street cleaners, who 
are among the lowest paid and least skilled of city employees. The board 
proposed fixing their pay in harmony with the results of a thorough in- 
vestigation of the income necessary for a family of five "Hving in accord- 
ance with American ideals." Such an income was then said to be $70 a 
month in New York City. Considering the increase of prices, it would 
have become $118 by the summer of 1919. While the wages of street 
cleaners were raised this standard was not reached. 



196 PRINCIPLES OF LABOR LEGISLATION 

are usually interpreted as union rates when a union exists in 
the locality. Several statutes and ordinances, however, es- 
tablish- a true minimum wage. For example, California pro- 
vides that the minimum wage for all public employees except 
those in public institutions shall be at least $2 a day.^ Massa- 
chusetts stipulates that "women cleaners and scrubwomen" 
employed by Suffolk County must be paid not less than $8 a 
week.2 In 19 13 Spokane, Wash., established by popular 
vote a minimum wage of $2.75 a day on public work, and on 
January 2, 19 14, the state supreme court sustained this or- 
dinance. But in this country until the last few years wage 
rates in private employment were seldom considered a sub- 
ject of possible legal regulation. 

There were, indeed, sporadic attempts to fix minimum 
wage standards by law. Typical of these is a bill introduced 
in the Nebraska legislatiure in February, 1909. This pro- 
vided that "for the purpose of protecting the American stand- 
ard of living, and to insure to all who labor that they shall 
have an opportunity to improve themselves, to educate their 
children, and to lay by a sum for old age," the minimimi wage 
"for all adult labor, male or female," should be 20 cents by 
the hour or $9 by the week, with 25 cents an hour for over- 
time. Such proposals, however, received but little serious 
consideration. 

The first American state to pass a minimum wage law was 
Massachusetts. An investigating commission was appointed 
there in 191 1, and its report resulted in legislation in 19 12. 
In 1 9 13, as a result of further investigations, eight states' 
followed the example of Massachusetts, and in 191 5 two more 
were added,* in spite of the withholding of the decision of the 
United States Supreme Court on the Oregon law. Arizona 
enacted legislation in 19 17 and Colorado revised its law, while 
following the Supreme Court's long-awaited decision, Congress 
legislated for the District of Colimibia in 19 18, and North 
Dakota and Texas passed laws in 19 19. The Nebraska law, 
under which no action had ever been taken on the ground 

* California, Code 1906, No. 2894, Sec. i. 

* Massachusetts, Laws 19 14, C. 413. 

» California, Colorado, Minnesota, Nebraska, Oregon, Utah, Wash- 
ington, Wisconsin. * Arkansas, Kansas. 



THE MINIMUM WAGE 



197 



that no complaints had been received, was repealed, appar- 
ently by accident, in codifying the laws in 19 19. 

Constitutional amendments specifically allowing minimtim 
wage legislation were passed by California in 19 14 for women 
and minors, and, contrary to American precedent, by Ohio 
in 19 1 2 for all classes of workers. Ohio, however, had in 19 19 
taken no step toward legislation except to authorize the state 
industrial commission to investigate working conditions among 
women and minors alone. ^ 

In addition to the measure enacted by Congress establish- 
ing a minimum wage law for women and children in the 
District of Columbia, bills have been introduced in that body 
applying to employees of the federal government, and to all 
workers engaged in interstate commerce, but these proposals 
have not as yet been given much attention. 

Thus far in the United States minimtmi wage legislation 
has been even more restricted in scope than at its first enact- 
ment in Great Britain or Australia. It has been passed to 
remedy sweating, not among all workers as in the other 
countries, but only among women and children. In this re- 
spect minimum wage laws resemble much other American 
labor legislation which also when first passed, in part for con- 
stitutional reasons, in part perhaps because of the more evi- 
dent inability of this class of workers to protect themselves, 
applied only to women and minors. Then, too, many Ameri- 
can representatives of labor oppose minimum wage laws for 
men, feeling that men workers can obtain better wages by 
organization without the aid of legislation. In addition wage 
investigations in this country have far more often dealt with 
women than with men, so that at present in America there 
exists a much greater body of evidence to show inadequate 
wages among women than among men workers. 

That a change is taking place in the public attitude toward 
wage legislation for men, however, is evidenced by the serious 
consideration given to a bill introduced in the Wisconsin 



* The department of investigation and statistics of the Ohio Industrial 
Commission had issued up to the beginning of 1920 two reports on the 
subject — No. I, "Wages and Hours of Labor of Women and Girls Em- 
ployed in Mercantile Establishments in Ohio in 19 13," and No. 14, "Cost 
of Living of Working Women in Ohio." 



ii H t 






:!fi 



^4 



198 PRINCIPLES OF LABOR LEGISLATION 

legislature in 19 19, which would have extended the provisions 
of the state minimum wage law to them. The bill passed the 
state senate, but failed in the lower house. 

Minimum wage legislation in the United States, then, is 
expressly permitted by two state constitutions and existed at 
the beginning of 1920 in thirteen states and in the District of 
Coliimbia. It is regarded almost entirely as a remedy for ex- 
ceptional conditions, providing only a bare subsistence wage 
for those considered the most helpless class of sweated workers 
— namely, women and children. The more rigid limitations 
of written constitutions, the labor union opposition, and the 
difficulties of administration, are factors which may work 
against such an extension of these laws in the United States 
as has taken place in some countries. 

3. Standards 

The purpose of minimum wage legislation is the raising 
of excessively low wages. The question of the standards of 
wage awards is therefore an important one. How adequate 
is the minimum wage? Is it always a "living wage," and, if 
so, is account taken only of the bare physical necessities of 
life, or is allowance also made for the requirements of mental 
and moral welfare? Is provision made for the support of a 
family or for the needs of the individual worker alone? Is 
there any consideration of probable periods of unemploy- 
ment? On what basis do wage boards fix the pay of yoimg, 
inexperienced, and handicapped workers? 

(j) Australia 

In Australia, statutory definitions of the minimum standard 
exist in Western Australia and New South Wales. In both 
cases it is that of the living wage. Since 19 12 Western Aus- 
tralia has required every minimimi prescribed to be "sufficient 
to enable the average worker to whom it applies to live in 
reasonable comfort, having regard to any domestic obligations 
to which such average worker would ordinarily be subject." ^ 

* Western Australia, industrial arbitration act, 191 2, No. 57, If 84. 



„ 



THE MINIMUM WAGE 



199 



The 19 18 amendment to the New South Wales arbitration 
act establishes a board of trade, one of whose important func- 
tions is the collection of facts which will enable the arbitration 
court to determine annually a general minimum living wage 
for men and for women.^ Tasmania and Victoria origmally 
provided that the "wages paid by the reputable employer" 
should be taken as the basis, but this standard proved difficult 
to administer, and the clause was dropped. 

The wage determinations of the Australian states have 
been much influenced by the decisions of the Commonwealth 
Arbitration Court which settles interstate trade disputes, 
and which eariy set as the minimum for unskilled laborers a 
sum sufficient to cover "the normal needs of the average 
employee regarded as a human being living in a civilized 
community." In other words, the minimum is a living wage 
in the broader sense of the term, not a mere subsistence wage. 
Above this "basic wage," which the court does not permit to 
be lowered for such considerations as international competi- 
tion or the lack of profitableness of the enterprise, may be 
•j fixed an additional "secondary wage," "the extra payment 
' to be made for trained skill or other exceptional qualities 
necessary for an employee exercising the functions required." 

"The court tends," said its presiding officer, "to refuse to 
make differences in minimum rates except for clearly marked 
distinctions and qualifications, such as craftsmen's, or excep- 
tional responsibility, or special physical condition, necessary 
for the function." The court held that with the secondary 
wage "there was more scope for compromise or arrangement" 
than with the basic rate. "At the same time it has been 
found advisable, except in extreme circumstances, to diminish 
the margin between the man of skill and the man without 
skill. . . . When the court has increased the basic wage because 
of abnormal increase of prices during the war it has not usually 
increased the secondary wage. It has merely added the old 
secondary wage, the old margin, to the new basic wage." 

The question of differing wage standards for men and for 
women has been clearly worked out in Australia. Since a 
man must normally maintain a family, a living wage for male 



Commonwealth Arbitration Reports, Vol. II, p. 3 



200 PRINCIPLES OF LABOR LEGISLATION 

workers must cover the cost of such maintenance; a woman 
ordmanly supports herself alone, so that the minimum for 
female workers is fixed on that basis. "The minimum can- 
not be based on exceptional cases." ' For the same reason 
the partial support of some women workers by their families 
IS not considered in fixing their wages. When both men and 
women are employed in the same occupation, the wage rate 
IS fixed for the sex usually found therein. Allowance is also 
made m wage-fixing for time lost on account of irregular 
employment, and for any special expenses connected with 
the occupation, such as traveling expenses or the provision of 
uniforms. 

(2) Great Britain 

In England, where no standard is set by the law itself, the 
general practice is "to level the wage for the whole trade in 
each district up to the standard of the best employer in that 
district." 2 In the badly sweated trades this means a con- 
siderable increase for most of the workers, but not necessarily 
a living wage. For instance, in chain-making, the original 
award gave a large increase in houriy rates for time work, 
though it provided only 5 cents an hour for women workers 
or approximately $2.70 for a full week's work of fifty-four 
hours.* More recent awards in less low paid trades seem to 
be on a somewhat more liberal scale, for instance that grant- 
ing adult women in the tobacco industry $8.40 for a forty- 
eight-hoiu- week. 

(j) The United States 

a. Definition of the Living Wage, Neariy all the American 
laws define in general terms the principle to be followed in 
fixing wages, which is usually that of a living wage. In a 
majority of the laws phrases such as "the necessary cost of 
proper living" and "to maintain the health and welfare" are 
used.* In working out wage standards on this basis, the 

» Commonwealth Arbitration Reports, Vol. VI, p. 71 

* John A. Hobson, "The State and the Minimum *Wage in England " 
The Survey, February 6, 191 5, p. 503. ^ 

' See R. H. 1 awney, Minimum Rates in the Chain-Making Industry 
1914, p. 39. < California, Laws 1913, C. 324. 



THE MINIMUM WAGE 



201 



Vi ■' 



English practice of leveling up wages to those paid by the 
best employer in the trade in a given district is obviously not 
a sufficient guide. Then, too, since the laws apply only to 
women and minors, relative standards for the two sexes need 
not be considered, as in Australia. One finds, however, 
America on the whole using the Australian standard for women 
workers — namely, the cost of living of the entirely self-sup- 
porting woman. American employers have sometimes asked 
that the help received by many women workers from their 
families be taken into account in fixing the standard, but this 
request has been denied. 

Earlier orders were in the neighborhood of $8 and $9 a week. 
Following the war-time price increases, the state of Washing- 
ton was the first to break away from the traditionally low 
levels by establishing, in September, 1918, a flat rate of $13.20 
for all experienced adult women for the period of the war. 
Oregon followed closely with rates of $11.10 and $11.61 in 
certain industries. The District of Columbia commission, 
making provision for the high cost of living in the city of 
Washington, fixed minima of $15.50 in the printing and en- 
graving industry and $16.50 — the highest award in the coun- 
try at the time — in mercantile establishments. Massachu- 
setts followed in May, 192c, with an order for a rate of $15.25 
weekly in the women's clothing industry. California in 19 19 
awarded $ 1 3 . 50 in laundries and dr y cleaning shops. Wisconsin 
set up a general rate of 2 2 cents an hour for experienced adult 
workers, and Minnesota changed from its $8 and $9 weekly 
rate to 23 cents an hour. 

But even under the highest wage awards strict construction 
has been placed by most wage boards upon the term "neces- 
sary cost of living." As a matter of fact, the budget, like 
the wage rate which it determines, is a compromise. The 
representatives of the employees present their budget and 
their proposal for a rate based on it; the representatives 
of the employers do likewise, and the two forces contend 
until they come to some agreement on a rate. The budget is 
then worked out to fit their rate. The budgets provided for 
under recent orders, even the most liberal, do little more than 
secure "not a wage so . . . women can live well, not enough to 
make life a rich and welcome experience, but just enough to 



'fi 



J' 

\ i 



403 PRINCIPLES OF LABOR LEGISLATION 

secure existence amid drudgery in gray boarding-houses and 
cheap restaurants." ^ That this is so is shown by an exam- 
ination of two Massachusetts budgets, the earlier drawn up 
by the wage board in the brush industry in 19 14, and the 
latter estimated for the women's clothing worker who receives 
$15.25 a week under the order of May 7, 1920: 



Minimum weekly budget for a 
self-supporting woman in Boston, 
1914. 

Board and lodging $5 • 50 

Clothing 1.35 

Laundry 20 

Doctor and dentist 

Church 10 

Vacation 19 

Recreation .09 

Newspapers and magazines .08 

Education 

Savings 

Carfare 60 

Incidentals.' .17 



Total $8 



Weekly budget allowed Massa- 
chusetts women's clothing workers 
in May, 1920. 

Board and lodging $ 9 . 50 

Clothing 325 

Laundry 45 

Doctor and dentist 40 

Church 10 

Vacation 40 

Recreation .37 

Newspapers and magazines 

Education 18 

Savings ."^O 

Carfare 20 

Incidentals 10 



28 



Total $1525 



b. Wage Losses from Unemployment. In fixing standards 
for minimum wages, the question of regularity of employment 
is of great importance. Whether or not a worker can secure 
steady employment in a given industry is the factor which 
determines whether the "living wage" prescribed in an award 
provides a ** living income" throughout the year. Until re- 
cently the problem has received but little attention in America,^ 
many of the awards thus far made being sufficient only for 
the needs of the current week. As no provision is made for 
savings, a girl who receives the minimtmi wage must run into 
debt or deny herself necessaries if she loses her position. Yet 
many low-paid industries whose wage rates are affected by 
minimimi wage awards are notably irregular, as for example 
candy-making and paper-box making. In Massachusetts, in 
Oregon, and in Washington, however, wage losses from unem- 
ployment have been given some attention by wage boards. 

1 Walter Lippmann, "The Campaign against Sweating," New Repub- 
lic, March 27, 191 5, Supplement, p. 8. , t> 1 

2 See Irene Osgood Andrews, "The Reiation of Irregular Employment 
to the Living Wage for Women," in Fourth Re fort of the New York 
Factory Investigating Commission, pp. 497-^35; also in American Labor 
Legislation Review, June, 191 5, pp. 287-418. 



I 



THE MINIMUM WAGE 



203 



c Profits oj the Business. An important question likely to 
arise when wage standards are fixed is whether or not the 
financial condition of the industry should be taken mto ac- 
count Most often the problem comes up m connection with 
the struggling business which claims it cannot survive if its 
workers are pai4 a living wage. The issue here is the lowering 
of the standard of wages in order to secure the continued 
existence of such an industry. But such a concession enables 
an industry to flourish without paying the whole cost of 
maintenance of those whose time and services it uses. Its 
workers must be partly supported by the eammgs of others, 
who are thus practically subsidizing the underpaying in- 
dustry. Such a trade has well been called "parasitic," since 
its existence depends on the bounty of others. It may be 
that other members of the woman's family (and the better- 
paying occupations in which they are employed) mak:e up the 
deficit in her income; it may be that society as a whole pays 
the bill for the physical and moral deterioration of the 
workers by its expenditures for hospitals, charities, and 

reformatories. . 1 • ^i. i. 4.1, 

Most American statutes, through the stipulation that the 
minimum wage shall cover the cost of living, take the same 
stand In Colorado and Massachusetts, however, "the finan- 
cial condition of the business" is to be considered side by side 
with the cost of living. In Massachusetts, m the temporary 
award for the brush industry, this resulted in fixing a mini- 
mum less than a living wage. The cost of living for a self- 
supporting woman was found to be over $8 weekly.^ But on 
account of the condition of the business the commission was 
obliged to make the hourly rate for the first year so low that 
women could earn only about $7 weekly unless they obtained 
more than the usual amount of work.^ In retail stores also 
the wage board believed the necessary cost of living to be 
"as much as and probably somewhat above" the minimum 
recommended, but held that "the schedule of wages adopted 
is as high as the retail stores of the state will be able to pay 
until industrial and business conditions shall have shown a 

^ See o 202 1 r 

2 Second Annual Report oJ tJie Minimum Wage Commission of Massa- 
chusetts, p. II. 



^■£' 



ao4 PRINCIPLES OP LABOR LEGISLATION 
n.l,>l""^""^ '^''"^'^'- N^^'-ly a» minimum wage laws 

apprentices m the award with the regular minirfuTrate it 
some ca^es where lower rates were set for mino^rdTeamei 
especia ly ,„ trades requiring little skill, there we^attmote 
to substitute young girls and inexperienced workers for"S 

tie T„"ro/'tt ^'^'^''^ '■' "- ^-"'l — -y to spedfy 
the length of the apprenticeship and sometimes also thl 

prnportion of apprentices allowed.*^ Learning perils specified 
m the orders vary from three weeks in the cSnS K^ 

s^r rll W*"° ^'^" '" *'^ '"^^'^-^'^ industr^^lf anS 
state The Wisconsin wage order provides for a six month J 
learning period for adult emnlovees Pr.r f hi f """"ths 
months of this period the mSrrate"^: p'ay iffs '^^ 
an hour; for the second three months. 20 cent an W 
Children between the ages of fourteen and seventeen mavte 
a^ho T'.r """"^ ^°' '^^ ""''' 'hree months and iTlS 
Z^ A " 't "^^""^ '^'^ '"^"ths. provided that whe^ a 
child IS doing the same work as an adult the child shall re^ve 
the same rate as the adult. In the retail mercantile trXthe 
Massachusetts orders provide for an apprenticed ^^^ 

S"t:r;aid from'r "f r'^'^' '^"""^ -^'^'^ tiL'zii 

dxe to De paid trom $4.50 to $7.50 a week. 

culTv' F^^^r ""^ f ^^\^^^k ^^ caused considerable diffi- 

rates on the ground that their employees who are on niece 
work cannot make the hourly rate. The California conSiTs 
sion has worked out a method by which employers maX 
theu^piece rates, by providing that if in an indfvidual estat 

C^e^^X'wa^T^^^^^^ '^^^--nt and Decree 

^ ^ g ine wages oj Women %n Retatl Stores tn Massachusetts, 1915, 



THE MINIMUM WAGE 205 

Hshment the piece rates do not yield to at least 66% per 
cent, of the female employees engaged on each product the 
niinimum wage, which in this case is 28 cents an hour, the 
piece rates must be raised to the point where they will do so. 
The employment of slow or infirm workers at lower rates 
is generally permitted only by special license from the com- 
mission. For further protection against the abuse of the 
pnvilege, certain of the laws specify the proportion of such 
workers in a single establishment for whom licenses may be 
issued. 

4. Methods of Operation 

^^ There are two types of minimimi wage law. One, tne 
"flat rate" law, prescribing the legal minimum in the statute 
itself, IS very rare, while the other type, under which a board 
or commission after proper investigation fixes rates for one 
industry or group of industries at a time, includes the vast 
majority of these laws now in existence. 



(i) Flai Rate Laws 

Laws which directly fix the flat minimum rate are found 
only m certain of the Australian states, and in Arizona Ar- 
kansas, and Utah. In Australia, in addition to the system 
of wage boards, laws sometimes establish very low flat-rate 
minima, frequently of not more than 48 or 72 cents a week 
intended principally to protect children, learners, and ap- 
prentices from being put to work without wages and dismissed 
when they ask for pay. In America, only the Arizona law 
with a $10 weekly minimum, and the Utah statute, which 
requires a daily wage of 75 cents for females under eighteen 
90 cents for inexperienced women, and $1.25 for experienced 
women over that age, fix universal flat rates. » In Arkansas 
a flat rate of $1.25 a day for experienced workers and $1 a 
day for females having less than six months' experience is 
fixed by t he law, but the commission may, after investigation 

» Arizona, Laws 1917, C. 38. • The law fails to specify any enforcing 



2o6 PRINCIPLES OF LABOR LEGISLATION 

and public hearing, either raise or lower these rates.* This 
it has done in a limited number of instances. This method of 
fixing uniform flat rates prevents the more careful adjustment 
for various industries and localities which is elsewhere imder- 
taken by wage boards, it fails to secure the active interest of 
the employers and employees concerned, and it makes revisions 
difficult during a period of rapidly changing prices such as 
occurred between 191 6 and 19 19. For women laundry 
workers in Little Rock, Ark., the National War Labor Board 
made an increase of $3.50 a week above the legal minimimi, 
saying that "This law was passed a number of years ago under 
other conditions and cannot therefore be taken as a fair stand- 
ard under the war conditions now existing." The flat-rate 
method is held by most students of the problem to be dis- 
advantageous. 

(2) Wage Board Laws 

Representative of the second type of minimimi wage laws, 
those which fix rates for various industries through wage 
boards, are the laws of Great Britain and of most Australian 
and American states. In Great Britain, under the amending 
act of 1918,2 the minister of labor is authorized to appoint 
representative "trade boards" to fix minimtmi rates in any 
industry "in which, on account of defective organization, 
wages are unduly low, or there is reason to apprehend an 
undue fall in wages when the special war conditions have 
passed." ^ New trades can be brought under the act without 
parliamentary confirmation, which was formerly necessary, 
though Parliament still reserves the right to veto such action. 
The boards may fix minimum time or piece rates which may 
differ for different classes of workers, for different districts, 
for different processes, or for any combination of these factors. 
Rates may be arranged to come into operation successively 
at the end of specified periods, and variations in rates may be 
made, to remain in force only during specified periods. In 

* Arkansas, Laws 191 5, No. 291. 

* 8 and 9 Geo. 5, C. 32 (1918). 

'Great Britain, Ministry of Labor, Labour Gazette, August, 191 8, p. 
308. 



THE MINIMUM WAGE 



207 



<1 



I 



short, under the new act, great flexibility in rate-fixing is 

secured. 

Awards also go into force much more quickly and simply 
than under the 1909 law. It is possible for a rate to be 
brought into full operation within three months after it has 
been proposed, in contrast to nine months imder the old 
conditions. Special exemptions for old or infirm workers are 
found in both acts. 

The act provides for the appointment of inspectors for en- 
forcing the payment of the minimum rates, and for fines for 
employers not paying the rate. An employee who has not 
received the legal minimum rate may recover the balance 

due him. 

In Great Britain the ministry of labor, which is the general 
administrative body, has less power over the work of its trade 
boards than have American administrative commissions over 
their wage boards. A British trade board has the final power 
over rate-fixing. An American wage board has power to 
recommend rates which the commission may declare effective, 
or modify, or reject altogether. In some states the com- 
mission may fix minimimi rates without the intervention of a 
wage board. So far the American method is rather a regula- 
tion by commissions than by wage boards piu-e and simple. 

These commissions — called minimtmi wage commissions, 
industrial welfare commissions, or industrial commissions — 
are usually unsalaried and composed of from three to five 
persons, one of whom must usually be a woman, appointed by 
the governor. Their jurisdiction extends over females and 
male minors up to eighteen or twenty-one (fifteen in Texas), 
and over all industries, except in Colorado and Arkansas where 
specified lists exist. Arkansas, also, is one of the few states 
specifically exempting certain industries, those included being 
cotton factories, fruit and vegetable canning, and establish- 
ments employing fewer than four women at the same sort of 
work. The District of Colimibia excepts domestic service. 
North Dakota domestic service and farm labor, and Texas 
adds to these classes nurses, student nurses, and students 
working their way through school. The commissions are 
authorized to subpoena witnesses, administer oaths, and 
examine books and papers, and employers are required to 



2o8 PRINCIPLES OF LABOR LEGISLATION 

keep records of the names, addresses, and wages of women 
and minor employees. If the commission learns by investi- 
gation — which is sometimes compulsory on petition — that 
wages are insufficient to maintain the specified standard of 
living, it must proceed either to determine a minimimi rate 
or to establish a subordinate wage board for the industry. 

The subordinate board, which is provided for in all the 
laws except that of Texas, must be representative of employers, 
employees, and the "public." Unlike the foreign acts, which 
provide for the nomination of representatives by employers 
and employees, American laws generally leave the method of 
selection to be determined by the commission. The com- 
mission may, of course, ask both parties to elect, and this 
democratic method is required in the Minnesota law "so far 
as practicable." While in theory it has been felt desirable 
that in the interests of democracy employers and employees 
should elect their representatives to the wage boards, in prac- 
tice it has proved exceedingly difficult to depend entirely 
upon election for securing proper representatives for un- 
organized workers. Their lack of acquaintance and the fear 
of losing their places on account of their service on the boards 
make them reluctant to serve, and timid in conference. For 
the present it has therefore been found more effective to leave 
the enforcing authority free to select representatives from 
lists submitted by the employees or from those formerly in 
the trade as well as through election. Employers, also, have 
often been unwilling to elect their representatives.^ 

The subordinate wage board may use the investigations of 
the commission in determining wage rates or may make 
further investigations of its own. It must make a report of 
its work with recommendations to the commission, which 
may accept the recommendations in whole or in part or may 
refer them back to the board for further consideration or may 
convene a new board. When the report of the wage board 
has been accepted by the commission a public hearing must 






THE MINIMUM WAGE 



209 



* In Minnesota the commission was obliged to choose representatives 
of both employers and employees for the wage boards, and to select 
several of the latter from outsiders. See John A. Ryan, "The Task of 
Minimum Wage Boards in Minnesota," The Survey^ November 14, 
1914, p. 171. 



f 



/ 



be held; if after public consideration no change is deemed 
necessary in the recommendations they are promulgated as 
orders which become effective in thirty or sixty days. Nearly 
all the laws grant rehearings on petition of either side. Copies 
of orders issued by a commission must in most cases be for- 
warded to the employer concerned, who is required to post 
them in a conspicuous place. Minimum wage rates may apply 
either to time or to piece work, and in Kansas, Minnesota, and 
Oregon orders may be issued for a given locality or area. In 
Wisconsin the industrial commission has power to classify 
industries for the purpose of adjusting wage rates. 

The commissions are authorized to make special exemptions 
for women, and in Wisconsin for minors also, who are physi- 
cally handicapped. Special licenses may be issued to learn- 
ers and apprentices in all states except California, Colorado, 
and Texas, and in Oregon and Washington the life of these 
licenses may be limited. In Kansas, minors may be employed 
at lower rates than adults only by special license. 

The interests of employers and employees are usually 
further safeguarded by provisions for a court appeal from 
the commissions' rulings, the procedure and the subjects for 
court review being carefully specified. In most of the states 
rulings may be set aside if unreasonable or unlawful ; in North 
Dakota, Oregon, and Washington only questions of law may 
be reviewed, while in Massachusetts an employer may have 
an award set aside in his particular case by filing a declara- 
tion under oath that it would prevent a "reasonable profit." 
In most instances, the findings of fact by the commissions are 
held prima facie reasonable, and any new evidence must be 
referred back to them for consideration. 

The commissions, except in Arkansas, are authorized to 
enforce their own rulings. Most of the states provide fines 
of $10 to $100 for employers who fail to pay the minimum 
wage or who violate any sections of the act or any commission 
ruling. It has also been found necessary to penalize by a 
fine of $25 to $1,000 employers who discriminate against 
employees because they have testified in wage investigations 
or served on wage boards. In Massachusetts, however, the 
commission must rely on the compulsion of publicity to 
enforce its wage rulings. In that state employers cannot be 



;»i 



lii 



2IO PRINCIPLES OF LABOR LEGISLATION 

compelled to pay the minimum, and the only punishment for 
those paying less than indicated as a minimum is the possi- 
bility of the publication of their names in a given number of 
newspapers throughout the state. Such action had not been 
taken up to the beginning of 1920, and there was at that time 
a growing movement in the state to make the law mandatory. 
Certain conscientious employers have joined it, saying that 
their observance of the awards handicapped them in compari- 
son with their less scrupulous competitors. Publishers re- 
fusing to print the names of such employers are liable to a 
fine of $100. In all other states, employees who have not 
been paid the legal minimum rate may recover the unpaid 
balance through a civil suit, which has proved an effective 
weapon in securing observance of the awards. 

In America, then, the establishment of minimum wage 
rates is a long and fairly complicated process. First there is 
the investigation by the commission, then generally ftu-ther 
investigations and deliberation by a representative wage 
board, next public hearings, and finally a possible court re- 
view before the minimum rate goes into effect. 

5. Results 

It IS still alleged in some quarters that wages are fixed by 
economic laws, any legislative interference with which can 
result only in disaster. At present all that can be said is 
that experience covering twenty years in Victoria and shorter 
periods elsewhere has failed to confirm these dire predictions. 
One of the strongest testimonials on the value of minimum 
wage legislation is found in the extension of the British act to 
prevent dislocation of wages after the war, following investi- 
gations of its operation by a subcommittee of the reconstruc- 
tion committee. It was officially stated that, "The eight 
years' experience of the satisfactory results achieved by the 
trade boards, whose activities have proved of benefit not 
merely to the workers, but to all sections of the trades which 
worked under them, pointed to an extension of the trade 
boards act, 1909, as the best means of meeting the situation." ^ 

* Great Britain, Ministry of Labor, Labour Gazette, August, 1918, 
p. 308. 



' 



THE MINIMUM WAGE 211 

(i) Changes in Wage Rates 

Perhaps the first question to be considered is whether the 
laws have succeeded in raising wage rates. Nearly all the 
evidence so far collected goes to show that they have. Some 
instances of failure are known. In Victoria, for instance, it 
has proved difficult to maintain the legal rate in the furniture 
trade among the Chinese, where neither employees nor em- 
ployers welcomed the establishment of the wage board,* 
and in England the custom of distributing work through 
middlemen, and the depression of the industry, led to evasions 
in the lace-finishing trade.^ Similar evasions have been sus- 
pected with regard to homeworkers in the British tailoring 
industry.^ But on the whole, in the different countries and 
in the various industries, the awards of the wage boards have 
been found to be effective. In Victoria, official reports show, 
average wage rates increased 7.6 per cent, in thirteen board 
trades in a period of about five years before awards were 
made, but 16.5 per cent, in these and in six additional board 
trades during a similar period after awards were made. In 
six trades a period of decline in wage rates became a period 
of advance after the making of awards. During the whole 
time wage-rate advances in twelve non-board trades amounted 
to 1 1.6 per cent."* In the English chain-making industry 56.7 
per cent, of the male mastermen and 61.3 per cent, of the 
journeymen earned less than $3.60 a week in 191 1. In 1913, 
after the award by the trade board, only 1.3 per cent, of 
the mastermen and 0.7 per cent, of the journeymen earned 
so little.^ In the branches of the English tailoring trade cov- 
ered by the trade board, it is estimated that about one-third 
of the women and between one-fourth and one-fifth of the 



* M. B. Hammond, "Where Life Is More Than Meat," The Survey, 
February 6, 19 15, p. 498. 

^ Sixth Annual Report of the Anti-Sweating League, p. 6. 
' See R. H. Tawney, Minimum Rates in the Tailoring Industry^ I9I5» 
pp. 202-210. 

* Ernest Aves, Report to the Secretary of State for the Home Department 
on the Wages Boards and Industrial Conciliation and Arbitration Acts 
of Australia and New Zealand, 1908, p. 30. 

* R. H. Tawney, Minimum Rates in the Chain - Making Industry, 
p. 83. 



212 



Mt 



11 



PRINCIPLES OP LABOR LEGISLATION 



men received increases in their earnings.' In Washinrton 

str^'Sr S'"' '^°™^-°" states^hat in SSr 
btures, Detore the minimum waee awprH t >,^c „ J' ^"^ 
ceived Ipqq fKor^ « i7 , ^ awara, 1,758 women re- 

• ^t- r ^™^y earnings of women were 8 6 ner rpnf h;^u^^ 

(2) Changes in Wages above the Minimum 

Itis frequently declared that legal minimum wage rates tend 
to become maximum waee ratecT t hnc \^i - 1 . ^ 

they are expressly desjnfd totn fit.^ "Clefn^t tT 

ina:^"The^^e^£,^e:S.rar2£t^£-" ^ 
wage in a trade is invariably higherthin tt,. ^^^'^^^ 

l^TLXZlr-''^ indit^^tthfn r Jtt Tawa^ 
c^rSher^rnt'^^TSJ^-r^^^^^^^^ 
minimmn rates in the clothing trades in GreS RHf^ n^. J 
>ili^-al districts to trade uniL actioV^hfc^LdSid 

PTa^Atw^/on, 1915, pp'^13 j^ ^naustnal Welfare Commtsston, State of 

I9iltt.^'''^ ^"^"^ °^ ^^^- ^^^-^-. ^«^^^- ^- /7d. July, 

rnu^^f'Slcl^^ THe Effect of tke MinU 

Irene Osgood AndrewtS/l/mlT^a^^ ^?^5. p. 5- 

'Henry R. Seager, "Theory orth^ Entfrn w '"'-P^i* ^^^^' 77-78. 
Legislation Revid, February 19 13 p 89 ^w^nVan Z^^r 



THE MINIMUM WAGE 213 

rates considerably above the legal i^nimum.^ In Portland 
Ore. also, the United States Bureau of Labor Statistics 
found that the proportion of women getting more than the 
legal minimum increased after the law went into effect 2 In 
Wisconsin many employers testified that over half of the 
increase in their pay-rolls due to the minimum wage order 
was for the purpose of raising the wages of those who were 
already above the minimum, but who must be paid a higher 
rate for greater efficiency. 

(j) Efect on Unemployment 

It is further argued against minimum wage laws that they 
force workers out of industry, either because the workers are 
considered by the employer unprofitable at the legal rate or 
because they can be replaced by apprentices or by specially 
licensed workers at a lower rate, or perhaps because they have 
been active on the wage boards. While all three abuses have 
probably taken place at various times, they are not universal 
and are not inherent in the laws. On the first point, the 
testimony of the chief factory inspector at Melbourne pre- 
viously quoted, is that "this dislocation [of the less s^Deedy 
workers] is not serious, and that as a rule things regulate 
themselves fairly satisfactorily." 3 The Oregon investigation 
made by the United States Bureau of Labor Statistics showed 
that expenenced women workers were neither thrown out of 
employment by the operation of the law nor supplanted by 
men In sixteen brush factories in Massachusetts the total 
number of women increased from 332 to 334 between 1013, 
when the first wage investigation was made, and 1915, the year 
following the minimum wage decree; the number of men de- 
creased from 472 to 417.^ The system of issuing special per- 
mits for less efficient workers to be employed at lower rates, 
which IS provided for by most of the statutes, is undoubtedly 
helpful in making the adjustment. On the other hand, the 

« fT;,?;7irj®^'T.^*''''""?T^'L^^ *^ '^^ TaUoring Industry, p. 96. 
1 n .i K*^ T^ ^"^'r^"^ °i ^^^°^ Statistics, Bidletin No 176 i 1^ 
I Pr^^.^f? c7 ^""^T? ^"Sood Andrews. Minimum Wage Legislation d 6t 
* United States Bureau of Labor Statistics. BuUetin nTi76vt,^'^o 
' Massachusetts Minimum Wage Commission, BulimnNo.7%^' pi?* 



214 PRINCIPLES OF LABOR LEGISLATION 

displacement of adult skilled workers by apprentices or by 
defective workers at a lower rate can be checked by limiting 
the percentage of employees in any establishment who may 
work at such lower rates, as is already done in Minnesota 
with regard to defectives. The matter of discrimination 
against workers who serve on wage boards is more difficult 
to handle, although most American laws establish penalties 
for it. This discrimination is a severe handicap to securing 
a proper representation of the employees on wage boards. 
However, this is no serious argimient against minimum wage 
legislation, as the same sort of discrimination often takes 
place against the leaders of the workers in any concerted move- 
ment for higher wages. 

(4) Effect on Industry 

From the side of employers it is frequently declared that 
minimum wage laws will put them under such a handicap 
that they will be forced to move to freer territory or be 
driven out of industry altogether. Neither seems to have 
taken place to any appreciable extent. The officials of the 
Victorian Chamber of Manufactures and of the Victorian 
Employers' Association, the two bodies which originally led 
the opposition to the wage-board system, now declare that 
they have no wish to see the system abandoned.^ In 1903 
and 1904, eleven of the thirty-eight special boards then in oper- 
ation in that country were established upon the application 
of employers.^ Only a single instance is recorded of a plant 
leaving the state because of the minimtim wage law.' In 
Great Britain, also, in the industries having wage boards, 
the "employers have not been ruined or even injured in their 

* M. B. Hammond, American Labor Legislation Review, February, 1913, 
p. 113. 

' Victor S. Clark, The Labor Movement in Australasia, 1907, p. 147. 

' "A brush manufacturer from England, who had recently come to 
Victoria to establish his business, was so enraged at the idea that the 
wages he was to pay were to be regulated by law that he moved across 
Bass Strait to Tasmania. What has happened to him since Tasmania 
has adopted the same system of wage regulation, I do not know." — M. B. 
Hammond, "The Minimum Wage in Great Britain and Australia," 
Annals of the American Academy of Political and Social Science, July, 
I9i3» P- 32. 



THE MINIMUM WAGE 



215 



profits,"^ and the board of trade reports that it is "not 
aware of any tendency of manufacturers to transfer their 
business to foreign countries, or, in cases where lower wage 
rates have been fixed for Ireland than for Great Britain, to 
transfer their business from Great Britain to Ireland." ^ The 
actual cost of the necessary changes is, after all, not burden- 
some. In Oregon retail stores the increased labor cost was 
found to be only three mills on each dollar of sales.^ In the 
Massachusetts brush industry both the amount of capital 
invested and the value of the product increased in the year 
following the decree.* 

(5) Effect on Trade Unionism 

Certain trade union officials, especially in the United States, 
have feared that minimiun wage legislation would hinder the 
trade union movement by enabling the workers to secure 
wage gains without the aid of organization. Their fears have 
not proved true. Instead, the formation of wage boards has 
often acted as a stimulus to the organization of unions, through 
which the workers have in some cases been enabled to make 
further gains above the legal minimum rate. This is the testi- 
mony of Australian observers and of the British Board of 
Trade, and it has been stated that in the experience of Massa- 
chusetts "the conspicuous feature is the impetus given to 
workers in the candy and brush trades to form organizations 
where none had been before." ' 



{6) Effect on Efficiency 

A final point to consider is whether guaranteeing to every 
worker a legal minimum wage reduces incentive and output. 
The preponderance of evidence is that it does not, but that 
it even has the opposite effect, due in part to the employer's 



' John A. Hobson, "The State and the Minimum Wage in England," 
The Survey, February 6, 1915, p. 503. 

' Quoted by Irene Osgood Andrews, Minimum Wage Legislation, p. 78. 
' United States Bureau of Labor Statistics, Bulletin No. 176, p. 10. 

* Massachusetts Minimum Wage Commission, Bulletin No. 7, p. 14. 

* Florence Kelley, "Status of [Minimum Wage] Legislation in the 
United States," The Survey, February 6, 191 5, p. 489. 






WA 



ij| Ml^ 



216 PRINCIPLES OF LABOR LEGISLATION 

insistence on greater returns for increased waees and in n«rf 

™eT:S r '^""^? '"P°"- *° '•'^ ^P-fd 'r^t'e^ 
remuneration.' Some employers in Australia feel that o„f 

put has been reduced in recent years, but they aSibe the de 

chne to rade union policy rather than to wage^rds whte 

n thr&s'tr.t^-r[^^ f °«^^''-' In EnSd a^d 
rn.vT ♦\, J ^ '* '^ believed that efficiency h^ cone ud 

th t -'th " '^°^"- Thus the British Board of S declares 
that there are md.cations that in many cases the effidencv 
of the workers has been increased." ' and the Industrial Wei 
stndardT/"k°" °' ^-'?-«t°" includes that "the Jl' 

IS^I^ '^T.^^^ Wely duet^^^'L^sfronr 

legi^Z *'?^^^^^"«'-««'=*"«hed results of minimum wage 

wSs (") thaTZ' "''^ mentioned (x) that it has rais^ 
wates, (2) that mmimum wage rates do not in general tend 
to become maximum rates; (3) that it does not necesUn"v 
force workers out of industry; (4) that it does not uS 
handicap employers; (5) that it does not u^dei^ne trade 
umonorgamzation; and (6) that it does not decrS^ffidency 

6. Constitutionality 
- The constitutionality of minimum wage legislation involv^c 

T '' '' "'' ^'^P^'^ constitutional prindple that 

cal effect of relatively high and tow rafeT^n ,1 T^' """ P^y<=hologi. 

to be exactly the reLJlttLt:h:,^!s^^b%'Z''^t:: "Sj'-J ="?'^ 
low rates 'mak me them wnrt ' fK«w " **^'-""ea to them, bo far from 

spair. So far from S r^tes ' enPn?L • '''' f "'J^"'^^ istlessness and de- 
workers to earn aTmuch L DoS L^^^^^^ slackness/ they stimulate the 
Tawney^^,.,^^,^- P^^^^^^^ upon them." (R. H. 

Feb^L%!%";Tr5o7^^^^ ^^^^ '^ ^-^ Th^anV4^t^ THe Survey 
Washington, p. 13.^ "^ industrial Welfare Commission, State of 



;1* 



THE MINIMUM WAGE 217 

the employee's right freely to contract for the disposition of 
his own labor cannot be limited except b^^ "due process of 

, law, yet the police power of the state can restrict the free- 
I dom of contract for the protection or betterment of the pub- 

j he health, morals, peace, and welfare. Enactments of the 
legislature which reasonably tend to that end have been 
commonly sustained by the courts. Are minimum wage laws 
a legitimate extension of this power .^ The prevailing trend 
of judicial opinion is that they are. 

The courts have already sanctioned under the police power 
principle state interference with the wage bargain by limiting 
working hours for all classes of employees, and by regulatin- 
certain conditions of the wage payment, such as the frequency 
of payment, store orders, or payment in cash.^ Justification 
for state interference to fix minimum wage rates has been 
sought on the same grounds on which other protective legis- 
lation has been upheld. 

In public employment, indeed, it has been frequently de- 
cided that the legislature may rightfully regulate wage rates 
as well as other conditions of labor both on direct work and 
on work done by contractors. On work done by contract 
the wage regulation has commonly taken the form of stipu- 
lating that the current rate of wages shall be paid and the 
constitutionality of this form of regulation is now well estab- 
lished.2 In 19 14, moreover, the Washington State Supreme 
Court sustained a more drastic wage regulation for public 
works. Spokane had fixed by ordinance a minimum wage 
rate of $2.75 a day for common labor on all public improve- 
ments. Though this rate was higher than the current rate 
for similar work, the court upheld the ordinance even when 

»r,*/l early as 1859, in a wage exemption case, the court said: "The idea 
underlymg the ultimately developed sentiment of the people upon Ihat 
subject . . .IS that the citizen is an essential elementary ?onstftuent of 
the state; that to preserve the state the citizen must beyot^ted that 

1171^% """f ^^r ^¥ "'^^^ ^^ ^*^^^g' t° ^^t ^"d to be a cftizen he 
must be free to act and to have somewhat wherewith to act, and thus 
to be competent to the performance of his high functions as such. Hence 
It would seem, as no doubt it was, a matter of the gravest state ooHcv 
to invest the citizen with, and to secure to him, those ^sential perqu?sitS^ 
without which the state could not demand of him at all times hTsTnsTant 
service and devoted allegiance." Maxwell .. Reed, 7 W r^L isTg) 
« See Atkm v. Kansas, 191 U. S. 207, 24 Sup. Ct 124 (1903) ^^^^' 



. ! 



2i8 PRINCIPLES OF LABOR LEGISLATION 

applied to work done by contractors, as neither unreasonable 
nor in violation of the public policy of the state. ^ 

These cases, however, were based on the proprietary power 
of government, and not on the police power. The legality 
of state regulation of wage rates in private employments was 
less certain. It was not until the Supreme Court of the 
United States, by an even division, left in force a previous 
decision of the Oregon Supreme Court in favor of the state's 
minimum wage law that the question was {settled.^ One jus- 
tice did not vote because he had taken part in the preparation 
of the brief ^ in favor of the act, so that under the present 
composition of the court a favorable decision on any subse- 
quent minimum wage case seems to be assured. The Oregon 
court took judicial notice of the "common belief" that many 
women are employed at excessively low wages and that health, 
morals, and the public welfare are injured thereby. Accord- 
ingly, the law was held constitutional on the same grounds 
on which laws restricting the hours of labor for women have 
been sustained. The court held that "Every argument put for- 
ward to sustain the maximum hours law or upon which it was 
established applies equally in favor of the constitutionality of 
the minimum wage law as also within the police power of the 
state and as a regulation tending to guard the public morals 
and the public health." * 

In answer to the argument that the minimum wage law was 
beyond the police power of the state, the court said: "Such 
legislation must be taken as expressing the belief of the legis- 
lature and through it of the people. We think we should 
be bound by the judgment of the legislature, and if there is a 
necessity for this act, that it is within the police power of the 
state to provide for the health, morals, and welfare of women 
and children and that the law should be upheld as constitu- 
tional." 



* Malette v. City of Spokane, 77 Wash. 205, 137 Pac. 496 (1913). 

* Stettler v. O'Hara, 243 U. S. 629, 37 Sup. Ct. 475 (1917). 

* The brief is prepared in a similar way to those used in the defense of 
women's hour laws, and contains a mass of evidence on legislation pro- 
viding a minimum wage for women, the experience on which such legis- 
lation is based, and citations to a large number of legal cases bearing on 
the subject. 

< Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (191 4). 



THE MINIMUM WAGE 



219 



In another Oregon case ^ the objection was raised that the 
act was an infringement of the rights guaranteed by the four- 
teenth amendment in that it abridged "the privileges or im- 
mtmities of citizens." To this the court replied that "The 
right to labor for such hours and at such wages as would 
reasonably seem to be detrimental to the health or welfare of 
the community is not a privilege or immunity of any citizen." 

The decision of the United States Supreme Court had been 
followed, up to the beginning of 1920, by favorable verdicts on 
minim-um wage legislation in the four state supreme courts 
of Arkansas, Minnesota, Washington, and Massachusetts. 
The Arkansas court, in upholding the state's fiat-rate law, 
pointed out that while the legislature was under obligation 
not to fix an unreasonable or arbitrary minimimi wage, there 
was no more appropriate standard than the normal needs of 
the employee, which was the basis upon which the legislature 
had proceeded.2 in sustaining the Massachusetts law, the 
court especially noted the fact that it was not compulsory, 
and reserved opinion as to the legality of a compulsory law.' 
The Minnesota and Washington cases turned on the police 
power question, as had those in Oregon.* 

One more minimum wage case was pending at the beginning 
of 1920. When the Minnesota commission issued its 1918 order 
of 23 cents an hour for experienced women workers, injunc- 
tion proceedings were immediately started against the order 
on the ground that it was arbitrary, not based on facts con- 
cerning wages and the cost of living obtained through inves- 
tigation as required by law, and that it was a fiat rate fixed 
without regard to differences in occupations and localities.^ 

Whatever may be the outcome of this case, it seems fairly 
safe to say that the idea of a living wage for all workers has 
become a popular one. Our minimum wage laws have at 
least done this — they have called the attention of employers, 
employees, and the public to some of the strange and unrea- 
sonable inconsistencies and discrepancies which exist in the 



1 Simpson t;. O'Hara, 70 Oregon 261, 141 Pac. 158 (1914)- 
« State V. Crowe, 130 Ark. 272, 197 S. W. 4 (1917). , ^. 
» Holcombe v. Creamer, 231 Mass. 99, 120 N. E. 354 (1918). 
< Williams v. Evans, 139 Minn. 32, 165 N. W. 495 (1917); Larsen v. 
Rice, 100 Wash. 642, 171 Pac. 1037 (1918). 




I ft (J 



ll 



! *■• 



!?: 



220 



PRINCIPLES OF LABOR LEGISLATION 



wage system. They have been one of the most efficax^ious 
means of bnngmg to light facts of industry which arel^Z 
pensable for the intelligent construction^of economic Sd 
legislative programs. Even those upon whom the burden of 
readjustment ha^ temporarily fallen admit the undesirability 
of the present chaotic, anarchistic methods of wage payment 
Whether we get away from this ugly situation by me^s of 
greater equalization of power through organization of the 
workers, or by means of public interference to fix a minimum 
wage or by means of combinations of both methods, we can 
(feel fairly well assured that the tendency is toward a guarfn^ 

(allowed to fall. Employers complain that when they have 
turned over to their employees a sum of money to be divided 
as a bonus, the employees have distributed it on the basis 
of need rather than efficiency. Skilled employees on the 

award, ^h' T'^' '""J^^"!! ^'^^ ^^^^^ ^^^ P^^- ^- -aSe 
greater for the lower paid and less skilled workers than for 
the higher paid employees. In other words, the tendency has 
been toward equalization, through bringing up the low-paid • 
employee to the standards of the higher. Lkbor organ^^- 

unskilled and looking after their interests. The minimum 
wage laws are at present in line, therefore, with a general 
pohcy and practice which may and do take other and sup- 
plementary forms, but which are not likely to become less 
important in the near future. 



CHAPTER V 
HOURS OF LABOR 

Of the many lessons which the world war taught industry, 
none is more clear-cut than that long hours do not pay. The 
experiences of the war strengthened the scientific basis for 
restriction of hours and gave an impetus to legislation. Yet 
in spite of a general tendency in the United States toward a 
shorter workday — a tendency which made especially rapid 
progress from 19 15 through 19 18— the old ideal of "eight 
hoiu-s for work, eight hours for rest, eight hours for what you 
will'* has not yet been realized by the majority of American 
wage-earners. 

In 1909, of the 0,015,046 wage-earners enumerated by tne 
Census of Manufactiu-es, only 7.9 per cent, were employed in 
estabUshments where the eight-hour day prevailed.^ "Pre- 
vailing hours" for three-quarters of them were from fifty-four 
to sixty weekly. But no fewer than 344,011, or 5.2 per cent. 
of the whole number, worked where prevailing hours were 
between sixty and seventy-two weekly; 116,083 worked in 
establishments where the seventy-two-hom: week prevailed, 
and 114,118 where the prevailing hours were more than 
seventy-two. Out of the eighty-six principal manufacturing 
industries employing more than 10,000 wage-earners in 1909, 
twenty employed over 10 per cent, of their workers more 
than sixty hours a week. Among those exacting more than 
seventy-two hours weekly from several thousand employees 
were beet-sugar, cement, chemical, glucose, and sugar and 
molasses factories, coke-works, gas plants, the manufacture 
of ice and lime, petroletun refineries, blast-furnaces, and 
rolling-mills. Among railroad employees, also, continuous 
service for long periods has been very common. Records of 
the Inters tate Commerce Commission show that during the 

* See Thirteenth Census of the United States, Vol. VIII, "Manufactures." 
PP- 306-313- 



222 PRINCIPLES OF LABOR LEGISLATION 

year ending June 30, 1913, 261,332 railroad men were reported 
as on duty for periods exceeding the legal limit of sixteen hours, 
and that over 33,000 of them worked more than twenty-one 
hours continuously.^ Hours of labor on street railways also 
extend over excessive periods through the swing run system 
which employs a man a few hours during the morning rush 
and then lays him off till the evening rush. During the in- 
terim he must be on call and usually cannot go home, so that 
his actual working day extends from the time he reports for 
duty in the morning till he is through with his last trip at night. 
Then, too, many employees are working seven days a week. 
Investigations show that much of the present-day continuous 
operation of industries involves seven - day labor. For 
instance, in Minnesota in 1909, 98,558 men, or approximately 
14 per cent, of the gainfully employed males in that state, 
were working every day in the week.^ In New York in 
1 9 10, out of 335,000 union members in a number of specified 
industries, more than 10 per cent, were engaged in seven-day 

labor.* 

Worst of all, many establishments which operate continu- 
ously, such as iron and steel plants, paper-mills, and glass and 
chemical works, combine the twelve-hour day with the seven- 
day week, and in not a few cases require their employees to 
alternate weekly or fortnightly between day and night shifts, 
working twenty-four hoiu"S without rest when the change is 
made. So glaring are the evils of this condition that under 
the auspices of the International Association for Labor Legis- 
lation a special conference on the subject was held in London 
in June, 191 2, and resolutions were adopted favoring inter- 
national action to secure eight-hour shifts in continuous in- 
dustries.^ 

To be sture, beginning in the spring of. 191 5 an active move- 
ment for the eight-hour workday swept the country, which, 
according to figures compiled by the United States Bureau 

1 Interstate Commerce Commission, A Statistical Analysis of Carriers* 
Monthly Hours of Service Reports, 191 3» P- lO- 

2 Minnesota Bureau of Labor, Twelfth Biennial Report, pp. 104-119. 

» New York State Department of Labor, Bulletin No. 4s, September, 

I9IO, pp. 450, 451., , ^ . . „ r r 1. ' ^ s' T 

* Report of Special Commtsston on Hours of Labor tn Continuous In- 
dtis tries, 191 2, pp. 16, 17 



$ 



HOURS OF LABOR 



223 



of Labor Statistics, reduced to eight the working hours of 
3,462,000 persons between January i, 19 15, and June 30, 
19 19. The movement began in Bridgeport, Conn., in 19 15, 
when a series of "eight-hour" strikes swept through that 
hive of war industries, not ceasing until the factories of the 
city were practically on an eight-hour basis. It spread mainly 
among machinists in 191 5 and 19 16, though anthracite coal 
workers had obtained a straight and railroad employees a 
basic eight-hour day before the United States entered the war. 
Eight-hour agitation was strengthened during the war by the 
government's attitude and by the reqtiirement of eight hours* 
work on government contracts, even though the latter was 
regularly waived and overtime at higher rates permitted. 
"The eight-hour day is an established policy of the country," 
said the President's personal mediation commission, and the 
government's chief war-time arbitration agency, the National 
War Labor Board, was favorable to the principle. Important 
industries going on an eight-hour basis dtiring the war included 
the garment trades, the lumber industry in the Northwest, 
newsprint paper, shipyards, and slaughtering and meat-packing. 
Following strikes or threats of strikes the eight-hour day was 
adopted in many textile mills in the early months of 19 19. 

Under modem industrial conditions excessive hours of work 
break down health. Even with short hours the strain of 
modem industry, with its speed, its piece work, its division 
of labor, involving the monotonous repetition of the same 
process, sometimes even of the same movement, is a heavy 
tax on the worker. But with the eleven- or twelve-hour day 
or the seven-day week, a man must go back to his job before he 
has had sufficient rest to recover from the excessive fatigue of 
the long work period, and a progressive decline in health results. 
**In my judgment," said a former official of a large steel com- 
pany, "a large proportion of the steel-workers, who from early 
manhood work twelve hotirs a day, are old men at forty." ^ 

Though it is the health dangers of long hoiu-s which are 
most often emphasized, the lack of leisure for family life, for 
recreation, for all the requirements of citizenship, is no less 
an evil. It should not be forgotten that the time spent in 

* William B. Dickson, former vice-president, United States Steel 
Corporation, The Survey, January 3, 191 4, p. 376. 



2 24 PRINCIPLES OF LABOR LEGISLATION 

going and coming from work and the dinner hotir often add 
two hours to the length of the workday proper, and that an 
eleven-hour day is likely to mean thirteen hours away from 
home. Said a Pittsburgh steel-worker of the results of such 
a workday, "Home is where I eat and sleep." ^ The ultimate 
effects of such hours of labor were thus summed up by the 
Supreme Court of Georgia in upholding a Sunday rest law: 
"Without specific leisure the process of forming character 
can only be begun; it can never advance or be completed; 
people would be merely machines of labor — nothing more." ^ 

Aside from their weaker physique, the "long day " is especial- 
ly onerous for women workers because of the double burden 
of domestic duties and wage work which many of them carry. 
Ordinarily men can rest when their day's toil is over, but 
there are few working-girls who do not have at least mending 
and laundering to do in the evenings, and many married 
women must take the entire care of their homes and children 
before and after work. 

Moreover, long hours do not necessarily make for the 
greatest economy and efficiency in production. It is some- 
times argued that if hours are reduced output will decline 
proportionately. This might be true if human beings were 
mere machines and not living creatures who grow tired. But 
as a matter of fact, as the English official investigations of 
fatigue among munition workers once more demonstrated, 
the law of diminishing returns operates nowhere more strik- 
ingly than in regard to hours of labor. Studies of output 
before and after a shortening of hours show that where the 
human element enters into production hour reductions by 
no means necessarily imply a decrease in output. For in- 
stance, as a result of study of the output of munition workers 
during workdays of different lengths, the British Health of 
Munition Workers Committee concluded "that for women 
engaged in moderately heavy lathe work a fifty-hour week 
yields as good an output as a sixty-six-hour week, and a con- 
siderably better one than a seventy-five-hour week." ' 

' Quoted by John A. Fitch, "The Steel Industry and the Labor Prob- 
lem," The Survey, March 6, 1909, p. 1091. 

2 Hennington v. State, 90 Georgia ^96, 17 S. E. 1009 (1892). 

* Great Britain, Ministry of Munitions, Health of Munition Workers 
Committee, Final Report, 1918, p. 35. 



HOURS OP LABOR 



22s 



The whole history of this committee has been of great 
educational value to officials, employers, and the public, in 
driving home the fact that excessive hours do not pay. Early 
in the war, in an effort to increase the supply of mimitions, 
the legal restrictions on the hours of women and children were 
relaxed, and night and Sunday work and days of twelve to 
foturteen hours became common for all classes of workers. 
Yet the supply of war materials failed to meet demands, and 
claims that the employees were "slacking" were met by 
countercharges that the workers were being driven beyond 
himian endurance. To advise on the situation the health of 
munition workers committee was formed, and as a result of 
its recommendations, as a means of improving output, Sunday 
work was practically abolished, hours were greatly reduced, 
and almost all the pre-war restrictions on the hours of women 
and children were reintroduced. A study undertaken during 
the war in America by the federal PubHc Health Service also 
showed the eight-hour day to be more efficient than the 
ten-hour day.^ Similar evidence has been gathered for 
a nimiber of industries, showing the beneficial effect of short- 
ened hours and of a full day's rest each week.^ This increase 
of output through increased efficiency probably largely ex- 
plains why wages have seldom fallen, but have frequently 
even risen, after a reduction of hours, and why the industries 
in which wages are highest are often those in which hours are 
shortest. Practical experience, therefore, gives weight to the 
old eight-hour league slogan: 

Whether you work by the piece or the day, 
Decreasing the hours increases the pay. 

Shorter hours likewise tend to steady emplo5anent. When 
no restrictions are placed on hours of work in a seasonal in- 
dustry, the tendency is to concentrate the work in a brief 
busy season with long hours of overtime. Hour regulation, 
except in the case of perishable products and those subject 

^ » United States Public Health Service, Public Health Bulletin No. 106 
Companson of an Eight-Hour Plant and a Ten- Hour Plant," Josephine 
Goldmark and Mary D. Hopkins, 1920. 

2 See American Labor Legislation Review, December, 19 12, pp. 524-527; 
Felix Frankfurter and Josephine Goldmark, Bunting v. Oregon, Brief for 
Defendant in Error, 1915, 2 vol. 

15 



226 PRINCIPLES OF LABOR LEGISLATION 

to changes in fashion, forces a more even distribution of the 
work over a longer period. When the woman's eight-hour law 
was in force in Illinois factory inspectors noted "a greater 
uniformity of work and rest ' ' as one of its results.^ The thirty- 
hour week demanded by the miners' organization in the strike 
of 19 19 was incorporated in their program for the purpose 
rather of regularizing than of shortening working time. In cer- 
tain occupations where the time of attendance and not the 
speed of the worker is the essential factor (ticket-chopping 
and street-car work, for example), the reduction of excessive 
hours increases to a certain extent the demand for labor. 

Aside from voluntary reductions by individual employers 
there are two methods by which the desirable goal of shorter 
daily and weekly hours has been reached— by labor organiza- 
tion and by labor legislation. Many workers, prominent 
among whom in this country are printers, granite-cutters, 
garment-workers, cigar-makers, and building-trades workmen,' 
have gained the nine- or eight-hour day by organization. But 
the present prevalence of longer hours of labor in the United 
States shows that the unions alone have not been everywhere 
adequate to the task. It has so far proved difficult to form 
stable labor organizations among women and among some 
classes of unskilled men workers. In some cases, too, as in 
the Pittsburgh steel plants, large-scale business has used its 
power to stamp out labor organization. After a century of 
effort probably four-fifths of those employed in trade, trans- 
portation, and manufacturing are still unorganized, and in 
recent years there has been a growing demand for the protec- 
tion of unorganized workers by legislation. 

I. Maximum Hours 
(i) Children 

The first legislative regulation of the hours of labor in this 
country applied to children. In 1842 a petition was presented 
to the Massachusetts legislature by certain citizens of Fall 
River, who pointed out that the existing hours of labor must 
be perman ently injurious to the health of children and detri- 

* Report of the Illinois Factory Inspectors, 1893, P- 18. 



HOURS OF LABOR 



227 



mental to their education, and prayed that prohibitory legis- 
lation be enacted. The agitation resulted in the passage 
during the same year of a ten-hour law for children under 
twelve years of age in manufacturing establishments. ^ In the 
same year, also, Connecticut enacted a ten-hour law for chil- 
dren under fourteen in cotton and woolen mills.^ 

By the beginning of the Civil War laws limiting the hours 
of children in manufacturing establishments to ten a day 
haJ been enacted in the five additional states of New Hamp- 
shire,3 Maine,^ Pennsylvania,^ New Jersey,^ and Ohio.^ The 
Connecticut statute of 1842 was, however, superseded thirteen 
years after passage by a new law v.^hich set back the limit to 
eleven hours, » followed within a year by an amendment which 
still further lowered the standard to twelve hours a day.^ 
Like the first Connecticut law, the early Pennsylvania laws 
applied only to textile mills, but in the other states the acts 
covered manufacturing in general. The ages of the children 
affected varied from twelve in Massachusetts to twenty-one 
in New Jersey and Pennsylvania. In addition to the states 
already mentioned, Rhode Island enacted in 1853 an eleven- 
hour law for children from twelve to fifteen.^^ 

These early laws were, however, to a great extent unenforced 
and even unenforceable. The still frequent provision, for 
example, that only violations committed "knowingly" are 
punishable, which, to quote a government report, has "put 
a premium on ignorance and . . . served to balk the intent of 
so much labor legislation," ^^ originated in the Massachusetts 
law of 1842 and was copied in New Jersey and Rhode Island. 
In New Hampshire children under fifteen could work longer 
than the statutory ten hours if provided with the "written 

' Massachusetts, Laws 1842, C. 60. 
2 Connecticut, Laws 1842, C. 28. 

' New Hampshire, Laws 1846, C. 318. * Maine, Laws 1848. C. 8^. 
^Pennsylvania, Laws 1848, No. 227; Laws 1849, No. 415; Laws i8ss. 

■iNo. 501. 

« New Jersey, Laws 1 851, p. 321. ? Ohio, Laws 1852, p. 187. 

« Connecticut, Laws 1855, C. 45. ^ > t- t 

•Connecticut Laws 1856, C. 39. 

^'' Rhode Island, Laws '1853, P- 245. 

^\Report on the Condition of Woman and Child Wage-Earners in the 
in?^ vr f "^f/^ ^P^f ^^ Po9""?e"t No. 645, 6ist Congress, 2nd Session, 
q?o. ' ^^''h^y\ 7^^ Beginnitigs of Child Labor Legislation in Certain 
btates, Elizabeth Lewis Otey, p. 78. 



f: 



228 PRINCIPLES OF LABOR LECxISLATION 

consent of the parent or guardian." * In New Jersey, and in 
Pennsylvania under the earliest laws, a child could not be 
"holden or required" to work more than ten hours a day, 
but if the child worked longer the employer, in order to escape 
all responsibility, needed only to declare that the extra labor 
was not required, but voluntary Ohio even went so far as to 
legitimatize this subtle distinction by declaring that minors 
under eighteen might not be "compelled," but that minors 
under fourteen might not be "permitted," to work more than 
ten hours. Only in two states were any provisions made for 
enforcement: in Connecticut constables and grand jurors 
were to inquire after violations, and in Pennsylvania con- 
stables could take action — but only after complaint. 

It is interesting to note that the early hour legislation for 
children resulted almost altogether from interest in education 
and from the efforts of adult male workers to secure such 
regulations as a first step toward obtaining similar laws for 
themselves. Sometimes, also, the men workers undoubtedly 
believed that restrictions on the hotirs of women and children 
would result in decreased employment of these classes of wage- 
earners, with consequent advantages to themselves. It was 
not until later that the main emphasis came to be put on the 
necessity of shortening children's hours to protect the health 
of the children. 

The greatest progress m legislation regarding the hours of 
labor for children has been made in the last decade. Begin- 
ning with Illinois in 1903, the eight-hour standard for chil- 
dren under sixteen has been established in the majority of 
important industrial states.* Eighteen states and the District 

* Of this law Horace Greeley said : " Why should ' the consent of the (?) 
parent or guardian of such minor' *be allowed to overrule the demands 
of Justice, Humanity, and the Public weal'? . . . We believe nothing less 
than a peremptory prohibition of the employment of Minors for more 
than 10 hours per day, without regard to the consent of parents or 
guardians, will effect much, if anything. Still, we are willmg to see 
a trial made even of this milk and water enactment." (New York 
Tribune, August 11, 1847.) 

- This standard existed in 1920 under the federal law, reinforced by 
statutes in twenty -six jurisdictions, namely: Arizona, Arkansas, Cali- 
fornia, Colorado, District of Columbia, Illinois, Indiana, Iowa, Kansas, 
Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, 
Nebraska, Nevada, New Jersey, New York, North Dakota, Ohio, Okla- 
homa, Twn^s3ee, Vermont, Washington, Wisconsin. 



HOURS OF LABOR 



22( 



of Columbia allow no exemptions from their eight-hour laws 
for children; but in Washington the law applies only to girls; 
in Colorado children may be exempted by the judge of the 
juvenile court; and in Indiana children may be legally em- 
ployed nine hours a day on affidavit of the parent, giving them 
permission. Of the remainder of the states, about half have 
nine-hour laws and half allow work for ten hours a day or more. 
Only Montana, which forbids factory work for children under 
sixteen, and West Virginia, do not regulate hours. Some of 
the southern textile states, however, still allow children to 
work legally eleven hoiu-s a day, and because of lack of en- 
forcement the hours in some of these states are reported to 
be even longer. 

Legislation for shorter hours for children has sometimes 
been combined with that for women, but at present, except 
in states where there is an eight-hour law for females, the 
workday is nearly always shorter for children than for adult 
women. The child labor laws, however, not infrequently 
give more protection to young working-girls under sixteen 
or even eighteen or twenty-one than to working-boys of the 
same ages.^ Hour limitations usually apply to all occupa- 
tions except domestic service, agriculture, and frequently 
fruit and vegetable canneries. Occasionally the law covers 
factories, but not stores. The hours during which children 
may be employed are further regulated by the very common 
prohibition of night work.^ 

Opposition from employers against limitation of hours 
has been even stronger than against any other restriction on 
child employment, the common argtunent being that manu- 
facturers will not be able to hold their own against com- 
petitors in neighboring states where longer hours are per- 
mitted. With regard to the eight-hour day, especially, an 
additional argument frequently advanced is that it would not 
be practicable to employ children for so short a period in 
a plant w here adults work a longer day. After eight-hour 

1 The absence of any hour restriction for boys along with an eight- 
hour law for all females m Washington has ah-eady been noted. Simi- 
larly m Ohio the eight-hour law applies to girls up to eighteen, but to 
boys only up to sixteen years. , v* ^ 

hibitois ^'^^^ Work," pp. 273-277, for a fuller discussion of these pro- 



|!' 



330 PRINCIPLES OF LABOR LEGISLATION 

legislation has been passed, however, it has usually been found 
that the mdustnes scon adjusted themselves thereto.' Finally 
partly m order to meet the interstate competition objection 
and partly m the mterest of more thorough enforcement.' 
the trend is now toward federal regulation, through the taxing 
power vested m Congress.'' •'Ojuiig 

Since all minors are for certain purposes wards of the state, 
which IS empowered to act for their protection when neces- 
sary, the constitutionality of state laws limiting their worldne 
hours IS not questioned. As a minor is legally incapable of 
entering into a free contract, such laws cannot be said to 

of fl^f iT! "^T^'^'l" P'r^' °^ '^^" ^^ fr^^'^o'n to dispose 
of h>s labor. The broad power possessed by the state to 

regulate the working conditions of minors was thus summed up 
by the judge in the case of People v. Ewer: "So far as such 
regulations control and limit the powers of minors to contract 
for labor there never has been and never can be any question 
as to their constitutionality." ' 

(2) Women 

In this country agitation for the limitation of women's hours 
followed close on the heels of the movement to regulate the 

factories representing the industries in which the West^,ii^h?..c f 

V,„„I! I w^"^ '"'° ^^^*'' '^•''I* the adults continued to work for 

longer hours. With practical unanimity employers reDorted tW tw 
had found no difficulty in readjusting schedS to XT tteUw and 

l^nrn^-^^^VSiSe t'^Z.'SlZ ^^s^^'^^^^B ^S 

^^^p^p:^^^^^, --^ --• (^^ ^^ 

children between fourteen and sixteen had been employed at nirf^t or 
profits n^.T^'.^Kr^r ^^y' f '^ P^^ <^^"*- tax was irnpoSd L lie nS 

' People V, Ewer, 141 N. Y. 129, 36 N. E. 4 (1894). 



HOURS OF LABOR 



231 



hours of children. As early as the ^thirties the labor press 
had protested against the long hours of work, and strikes for 
reduction of hours had been called. ^ Naturally enough the 
agitation centered around the textile mills, as they were the 
earliest large factories and their working hours were twelve 
or more daily. In 1834 a delegate discussing the condition 
of women in factories before the Trades' Union National Con- 
vention in Boston, said of the mill-owners: "They must be 
forced to shut their mills at a regular hour; there must be a 
certain time over which they shall not work, that all the 
inmates may have an opportunity to rest their weary limbs 
and to enjoy free and wholesome air." ^ 

By the 'forties, when many htunanitarian movements were 
rife, the ten-hour cause had made progress and legislative 
action was asked for. For example, in 1842, 1843, and 1844 
petitions asking for a ten-hour law were presented to the 
Massachusetts legislature.^ This early movement came al- 
most entirely from the ranks of the workers themselves, who 
sought legislation limiting hours for both men and women. 
Organized working-women played a prominent part in the 
campaign. The New England Workingmen's Association, an 
organization of wage-earners, encouraged by a few public- 
spirited citizens, which soon became the New England Labor 
Reform League, was active in the agitation. Closely con- 
nected with it was the New England Female Labor Reform 
Association, formed in January, 1845, almost all of whose 
members were women workers in the textile mills and whose 
activities centered at Lowell. They organized meetings, 
wrote for the labor press, and petitioned the legislature for 
the ten-hour day. The association cooperated with other 
women workers and started branches in Fall River, Mass., 
Dover and Manchester, N. H., and perhaps other places. In 

» Report on Condition of Woman and Child Wage-Earners in the United 
States, Vol. IX, "History of Women in Industry," Helen L. Sumner 
p. 67. 

* National Trades' Union, September 13, 1834, p. 2. Quoted in 
Documentary History of American Industrial Society ^ John R. Commons 
and Helen L. Sumner, ed., Vol. VI, p. 219. 

3 Charles E. Persons, "The Early History of Factory Legislation in 
Massachusetts," in Labor Laws and Their Enforcement, Susan M Kines- 
bury, ed., pp. 24-27. 



' 



232 PRINCIPLES OF LABOR LEGISLATION 

1845 the women textile workers of Pittsburgh were unsuccess- 
ful in a strike for a ten-hour day, but were told by their em- 
ployers it would be given them when other localities also re- 
duced their hours. Accordingly, the women wrote to New 
England for help. The girls of Lowell and Manchester re- 
sponded and all resolved to work only ten hours after July 
4, 1846. But on account of the opposition of the manu- 
facturers their efforts failed, and they once more tried to 
secure legislation. These organized women workers first 
succeeded in New Hampshire, where "by vigorous personal 
efforts they, more than any other group, secured the ten- 
hour law of 1847, the first of its kind in the country." ^ Similar 
acts were passed in Maine and in Pennsylvania in 1848, in 
New Jersey and in Rhode Island in 185 1.2 Massachusetts 
passed no ten-hour law until over twenty years later, per- 
haps partly because the leaders there insisted on effective 
legislation, which these earlier measures did not prove to be. 

These first acts were all of a similar type. They set ten 
hours as the standard, generally for all workers, for "a day's 
work" in the absence of "an express contract requiring greater 
time." ^ In New Hampshire, three days before the law went 
into effect the manufacturers submitted such express con- 
tracts to their employees, and though meetings were held and 
active agitation carried on to prevent the operatives from 
signing, all who refused were discharged and their places 
were soon filled by new workers. In Pennsylvania and New 
Jersey, notably at Allegheny City, Gloucester, and Paterson, 
the operatives carried on severe and prolonged strikes to 
secure the enforcement of the laws. They were successful 
in some, though not in all factories, but where the hours were 
shortened they suffered a corresponding reduction in wages. 
On the whole, these early acts "were practically dead letters, 
owing to their contracting-out clauses." * 



* Report on Condition of Woman and Child Wage-Earners in the United 
States, Vol. X, "History of Women in Trade Unions," John B. Andrews, 
p. 80. 

' Ibid., Vol. IX, "History of Women in Industry," Helen L. Sumner, 
p. 69. 

'See, for instance, New Hampshire, Laws 1847, C. 488. 

* Report on Condition of Woman and Child Wage-Earners in the United 
States, Vol. IX, p. 73. 



HOURS OF LABOR 



233 



From the 'fifties until after the Civil War, social reform was 
largely forgotten in absorption in the anti-slavery question. 
After the Civil War, when the movement for protective legis- 
lation revived, the laws asked for applied only to women 
and children, and were of the modem type, forbidding em- 
ployment in excess of a specified number of hours. The first 
of these had been passed in Ohio in 1852 ^ and set a ten-hour 
day for women workers, but was rendered unenforceable by 
penalizing only when a woman was cmnpelled to work in ex- 
cess of legal requirements. As most employees will volun- 
tarily work for twelve or more hours a day when they cannot 
find any one to employ them for ten hours, the law became 
almost entirely inoperative. In Massachusetts, active agita- 
tion was recommenced by 1864. By that time the women 
in the mills were largely Irish and French Canadians, who took 
little or no part in the movement. After strong opposition 
a bill was passed in 1874 2 limiting the hours of women and 
minors in factories to ten daily and sixty weekly. But even 
this law was ineffective because only "wilful" violations were 
penalized. It was not till 1879,^ when an amendment re- 
moved the *' wilful," that an American state had an enforce- 
able law limiting the hours of women's employment. By 
that time also state bureaus of labor and factory inspection 
vvere being created in the principal industrial states and were 
aiding in the enforcement of labor laws. 

Since that time fairly enforceable hour limitation laws for 
women have been secured in one state after another. In 
1908, when the Oregon ten-hour law for women was upheld 
by the United States Supreme Court, this legislation was 
placed upon a secure footing, and since that date the move- 
ment has gone steadily forward. By 1920 only six states, 
in most of which comparatively few women were industrially 
employed, had placed no restrictions on women's hours of - 
work,* many had limited hours to eight or nine a day and the 
majority had a weekly limit of less than skty hours. 

Present-day hour legislation for women runs in general 

» Ohio, Laws 1852, p. 187. « Massachusetts, Laws 1874, C. 221. 

' Massachusetts, Laws 1879, C. 207. 

* These states were Alabama, Florida, Indiana, Iowa, New Mexico, 
and West Virginia. * 



234 PRINCIPLES OF LABOR LEGISLATION 

along similar lines in the different states. Most statutes fix 
the same daily and weekly maximum hours for all occupations 
covered and generally include the principal industrial occupa- 
tions for women. Thus in Pennsylvania hours in "any estab- 
lishment" are limited to ten daily and fifty-four weekly, and 
*'any establishment" is defined as "any place within this 
commonwealth where work is done for compensation of any 
sort, to whomsoever payable" J except homes and farms. In 
only a few cases, however, do the laws define the time during 
which the work period must fall, either by naming the spread 
of hours allowed, by fixing opening and closing hours, or by 
forbidding night work. 

American laws, therefore, seem extremely simple when com- 
pared with the mass of detail found in European legislation 
on this subject. General laws exist in most European coun- 
tnes, but either by special statutes or by administrative orders 
work periods longer or shorter than those of the general law 
are fixed for many industries and occupations, and frequently 
even for special processes. This principle is often so far ex- 
tended as to prohibit entirely the employment of women in 
kinds of work especially dangerous to their health or safety. 
For example, the English factory act of 190 1 gives the home 
secretary power to make any limitation of hours whatever 
or to forbid the employment of any class of workers in dan- 
gerous trades.2 On the other hand, in certain cases, as where 
perishable materials must be handled at once to prevent 
spoiling, special orders lengthening the permitted period of 
employment may be issued.^ In addition, night work is, in 
general, forbidden, and opening and closing hours, not 
necessarily the same for every trade, are ahnost always 
fixed. 

The number of employments covered by hour legislation in 
America appears to depend largely on what occupations public 
opinion considers dangerous to the health of women. Thus 
the exclusion of farm work and domestic service from regula- 
tion is at least in part due to the belief that they in no way 
endanger health. The earlier laws, both |hose passed be- 



I 



» Pennsylvania, Laws 19 13, No. 466, Sees, i and 3. 



HOURS OF LABOR 



23 s 



fore the Civil War to fix a standard of hours and the first acts 
of the modem type, applied mainly to manufacturing estab- 
lishments. Such a limitation in the scope of the early laws 
was natural enough. At that time women were employed in 
large numbers outside the home only in textile factories. The 
Census of 1870 shows that but i per cent, of all the women 
"gainfully employed" were found in "trade and transporta- 
tion." It was in the factories that complaint was made of 
the overlong hours of work, and it was the factory operatives 
who carried on the bulk of the early agitation for legislation. 
Thus in New Hampshire the first hour limitation law, passed 
in 1847, applied only to manufacturing establishments,^ and 
the Pennsylvania law of 1848 affected only "cotton, woolen, 
silks, paper, bagging, and flax factories." 2 Likewise the 
Massachusetts ten-hour law of 1874 covered only "manu- 
facturing establishments." ^ It was not until the end of the 
'seventies, when the number of saleswomen had largely in- 
creased, that the dangers of constant standing and long hours 
were noticed and agitation was begun for legislation covering 
this occupation."* In 1883 the Massachusetts law was amend- 
ed to include "mechanical and mercantile establishments." ^ 
In the same way, as the field of women's employment broad- 
ened, the dangers of excessive hours and injury to health were 
discovered in one occupation after another, and the need for 
extending protective legislation became correspondingly ap- 
parent, until, in the laws passed in the last few years, prac- 
tically every form of industrial employment has been cov- 
ered at the same time and by the same restrictions. 

The Illinois ten-hour law of 1909 was one of the first to do 
this. It includes not only factories, mechanical and mer- 
cantile establishments, but also any "laundry, or hotel, or 
restaurant, or telegraph or telephone establishment or office 
thereof, or any place of amusement, or by any person, firm, 
or corporation engaged in any express or transportation or 



I Edw. 7, C. 22, Sees. 79-83. 



' Ibid., Sees. 49-52. 



* New Hampshire, Laws 1847, C. 488. 
' Pennsylvania, Laws 1848, No. 227. 
'Massachusetts, Laws 1874, C. 221. 

* Report on the Condition of Woman and Child Wage-Earners in the 
United States, Vol. IX, p. 238. 

' Massachusetts, Laws 1883, C. 157. 



f'ls 



I '1 



236 PRINCIPLES OF LABOR LEGISLATION 

public utility business, or by any common carrier, or any public 
institution, incorporated or unincorporated." * Similarly in- 
clusive acts are found in half a dozen other states, and almost 
every act now covers at least "manufacturing, mechanical, 
and mercantile establishments." However, when women 
entered such new occupations as street-car and elevator 
operation during the war, even the more inclusive of those 
acts which enumerated any list of specified occupations left 
the women without protection in their novel field of work. 
Laws such as that of Pennsylvania, which covers "any place 
. . .where work is done for compensation of any sort," except 
"private home and farming," and that of Wisconsin, which 
gives the administrative authorities power to modify the hour 
laws, are better suited to meet changing industrial conditions. 
There are also occasional instances of classification by 
cities, exempting the smaller places from the operation of the 
law. The Missouri law of 1909 2 and the Texas law of 1913 » 
both applied only to cities of more than 5,000 population. 
The Minnesota law applies only to first and second class 
cities (over 20,000 population) .< Establishments of various 
sorts employing fewer than three or five persons have also 
sometimes been excepted. Until 19 14 the Louisiana law ap- 
plied only to establishments employing more than five per- 
sons.** 

Such exemptions may perhaps also be explained on health 
grounds. It might be expected that the need for legislation 
m smaller places would be lessened by a supposed easier pace 
of work and the greater personal contact between employer 
and employee. Investigation shows, however, that excessive 
hours are often worked in small establishments and out-of- 
the-way places where public opinion is not active, and such 
exceptions are becoming fewer. « 

Certain exemptions have also been made because of special 

* Illinois, Laws 1909, p. 212. 

2 Missouri, Laws 1909, p. 616. « Texas, General Laws 1911. C. 17s 

* Minnesota, Laws 1913, C. 581, Sec. i. ^ ^^ 
Louisiana, Laws 1908, No. 301, Sec. i. 

« For instances of bad conditions in the smaller establishments see 
reports of the New York State Factory Investigating Commission, the 
benate Wage Commission for Women and Children in the State of 
Missoun, the Oregon Social Survey, and similar investigatigns. 



HOURS OF LABOR 



237 



industrial requirements, the most important of which have 
to do with work in canneries. On accoimt of the perishable 
nature of the materials, operators of canneries have vigor- 
ously opposed any legislation which would limit hours of work 
during the summer months, and because of this opposition 
a number of states, including most of those in which the 
industry is important, have allowed women and children to 
work unlimited hours in this industry. 

In the degree of restriction placed upon hours of women's 
daytime labor, many American states have gone further than 
European countries. Many important industrial states still 
follow early English and American precedent and fix a daily 
limit of ten hours, though a majority have reduced the working 
week to less than sixty hours. In recent years, however, as 
the eight-hour day movement has spread and standards for 
protective legislation have risen, several progressive states 
have limited the workday to nine and even to eight hours. 
New York is the most important industrial state having the 
nine-hour day and the fifty-four-hour week, while Ohio adds 
to the nine-hour d3.y a fifty-hour weekly limit, and Massachu- 
setts a forty-eight. The eight-hour limits are found in several 
western states and in the District of Columbia, but only Cali- 
fornia, Porto Rico, Utah, and the District have the forty-eight- 
hour week as well as the eight-hour day.^ 



* On January i, 1920, the situation with regard to women's hours was 
as follows: 

/. Eight-Hour Stales: 

Stale Hours a Day Hours a Week 

California 8 48* 

District of Columbia 8 48* 

Porto Rico 8 48 

Utah 8 48 

Colorado 8 — 

Montana 8 — 

Washington 8 — 

Kansas 8* (Basic. Seven hours* overtime 

allowed in emergencies. By 
rulings of Industrial Welfare 
Commission) 

Arizona 8 56 

Nevada 8 56 



238 PRINCIPLES OP LABOR LEGISLATION 
fam„r..'^^!"^""ir-'. °"^'* ?"« ^'^' -'d to enforcement in 



to set a legal closing hour.' A few states fix the 



in- 



//. Stales Allowing More than Eight but Less than Ten Hours 

North'Sakota "ours a Day Hours a Week 

Massachusetts 
Ohio 



48* 

48* 
50 

Or^o- Isll^Xr"'^ I? 

, 9 any other industry 54 
(By rulings of Industnal 
Arkansas ^ Welfare Commission) 



9 
9 

81-3 mercantile 
81-2 office 



Maine o 

Missouri Q 

Nebraska q 

New York ....'.*.'."." q 

Texas / 

Minnesota / 9 manufacturing, etc. 

Idaho ^ '^ mercantile, etc. 

Oklahoma , . , . . . q 

///. States Allowing Ten or More Hours: 
Wyoming. . . 
Connecticut. 
Delaware, . . 
Michigan .... 
Pennsylvania 
Rhode Island 

Wisconsin 1 ^ '^^^^ ""^^^^^^ °P^a- 

New Hampshire 10 r-d^^ 

Vermont m t ? 

lennessee 

Georgia 

Kentucky 

Louisiana 

Maryland 

Mississippi 

New Jersey. . . , 

South Carolina n to 

North Carolina ." __' " 

Illinois 

South Dakota. 
Virginia. 



.10 
.10 
10 
10 
10 
10 



. 10 1-2 
.10 
.10 
.10 
10 
10 
10 



IQ 
ID 
10 



54' 

54 

54 

54 

54* 

54 

54 

58 



52, 60 
55.58 

55* 

54 

54* 

54 



55* 

54 

56 

57 

60 

60 

60 

60 

60 

6o* 

60 

60 



IV. States Having No Laws Regulating Hours of Labor for Wome^: 



In the 



Alabama, Florida, Iowa, Indiana, New Mex 



with 



an 



ico, West Virginia, 
asterisk work is limited to 



six days 



states marked 
a week. 






HOURS OF LABOR 



239 



cidence of the working day indirectly through the prohibition 
of night work.i In Arizona, Utah, and Wyoming by statute, 
and in Kansas and Oregon by industrial welfare commission 
order, the permitted hours must fall within a ten- or twelve- 
hour period, but as a general rule regulations of the sort are 
not found in America. 

Though a niunber of states still permit overtime work, the 
general tendency seems to be toward doing away with all 
such exceptions. In 190Q, half the state laws, fourteen out 
of twenty-eight, allowed a certain amount of overtime work. 
In 1920, similar exceptions were found in only about a third 
of the statutes. The actual working of the laws, both in this 
country and abroad, has shown that all such exceptions are 
often a decided handicap to the enforcement of the law, being 
used to cover violations, or that at best they often defeat its 
purpose by legalizing hoiu^ so excessive as to be a danger 
to health. Therefore the tendency of recent legislation is 
against overtime work in any circiunstances. 

The conditions under which overtime work is still allowed 
seem to fall under three main heads. The overtime work on 
account of the stoppage of machinery, allowed in several 
states, and a few similar exceptions, are all permitted for the 
purpose of making up lost time. Several states allow over- 
time to meet the pressure of special industrial requirements, 
notably the Christmas rush in retail stores, where all hour 
limitations may be removed during that period, as in New 
Jersey,^ or a limited amount of overtime may be allowed, as 
in Montana.^ Finally, a very few states fix the amount of 
overtime, but not the conditions under which it may be 
worked; for example. New York, which allows an hour of over- 



mum IS recognized. In Massachusetts, for instance, until recent years, 
It was not uncommon in the textile mills for a woman to work ten hours 
dunng the day in one mill, and then for several hours in the evening in 
another. The practice was called "swapping." The Delaware statute 
(Laws 1913, C. 175, Sec. 2) contains a prohibitive provision in effective 
form, applying to all classes of work and placing the responsibihty for 
discovering any previous employment in the same day entirely on the 
employer. '' 

» See "Night Work," pp. 273-277. 

* New Jersey, Laws 1912, C. 216, Sec. I. 

'Montana, Laws 191 7, C. 18, 70. 






240 PRINCIPLES OF LABOR LEGISLATION 

time in factories on each of three days a week, provided 
the weekly total of hours is not exceeded thereby.* 

As previously stated, American statutes usually set the 
same daily hour limit for a large and varied group of indus- 
tries. That the requirements and the strain of various occu- 
pations may differ widely, and that the same limitation of 
hours may not equally well meet the needs of the workers 
in all of them, has been given but little consideration. For 
example, while it is apparent that in some occupations eight 
or even ten hours a day may not be physically injurious, 
in others, such as those involving exposure to poisons, ex- 
tremes of temperature or humidity, or excessive nervous 
strain, a much shorter work period may be seriously harmful 
to health. In certain branches of the telephone service, for 
example, the nervous strain is particularly severe. In 1907, 
in Toronto, Canada, a royal commission was appointed to 
investigate a dispute between the Bell Telephone Company 
and its operators. From the evidence given by physicians, 
the commission decided that if the health of the workers was 
to be preserved, the workday should not be more than six 
hours, spread over a period of about eight hours.^ Yet no 
American state has on account of special dangers placed the 
statutory restriction for any selected occupation in which 
women are employed below that stated in the general law. 

But recently a few states have adopted a new method of 
regulating women's hours, together with minimum wages 
and working conditions. These states lay down in their 
statutes the general principle that a woman is not to be em- 
ployed for any period of time dangerous to her health, safety, 
or welfare. A commission is then given the power to deter- 
mine, after investigation, maximum periods for different in- 
dustries and even for different localities, if desired. Such a 
law may become an instrument for the protection of the 
worker's health much superior to the ordinary flat-rate law. 
A commission regulating hours, through its powers of in- 
vestigating and setting standards, can take account of special 

* New York, Laws 1909, C. 36, Sec. 78 (i). 

* Report of the Royal Commission on a Dispute Respecting Hours of 
Employment between the Bell Telephone Company of Canada, Ltd,, and 
Operators at Toronto, Ontario, 1907, 



' 



HOURS OF LABOR 



241 



factors in certain lines of work which might cause serious 
injury to the workers in the usual work period, and can adjust 
hours according to the strain of each specific occupation. 

While all laws of this type conform to this same general 
principle, they differ in one important provision. Califor- 
nia * and Oregon permit their commissions to fix only shorter 
hours than those established by the general statute. "No 
such order of said commission shall authorize or permit the 
employment of any woman for more hours per day or per 
week than the maximum now fixed by law." ^ But in Ohio 
and Wisconsin the hours fixed may be either more or less than 
those of the general law. Kansas has no law limiting hours 
for women except the act empowering the commission to make 
regulations. 

In Kansas, Oregon, and Washington, the chief states in 
which really important action on hours of labor has been taken 
by these commissions, a considerable amount of flexibility has 
been secured in the determination of daily hours by commis- 
sion ruHngs. In Oregon, for example, where the statutory 
limit for females over sixteen is ten hours a day, the industrial 
welfare commission has fixed women's daily hours for the city 
of Portland at nine in manufacturing, and at eight and a 
third in stores. Even in canneries, which are often excluded 
altogether from maximum hour laws, the commission permits 
overtime in excess of nine hours, for only one hour daily and 
six hours weekly, for not more than six weeks during the 
year, and all such overtime must be paid for at increased 
rates. 

The possibilities of still more detailed adjustment to the 
needs of specific industries are evident, and therefore the 
method of regulating hours through administrative rulings, 
provided the precaution is taken of preserving a statutory 
limit of hours, marks a decided advance toward accomplish- 
ing the real purpose of hour limitation, the prevention of 
fatigue by forbidding excessive hours of work. 

Most of the special problems in the administration of 
woman's work laws center about the enforcement of hour 
legislation. Violations of laws regulating a continmng con- 

' California, Laws 1913, C. 324, 
* Oregon, Laws 1913, C. 62, Sec. 9, 



i: 



i<'i 



41 



242 PRINCIPLES OF LABOR LEGISLATION 

dition like hours of work are obviously more difficult to de- 
tect than violations of safety or sanitary laws which can be 
discovered by a single inspection. Therefore, various aids 
to enforcement have long been found necessary. The most 
common of these is the posting of notices, stating the per- 
mitted hours of work, a requirement which the United States 
Supreme Court sustained as constitutional in 1914.^ Such a 
provision had long been in the laws of a niunber of states. 
Massachusetts, following English precedent, had found it 
necessary to require the posting of notices as early as 1880.* 
The law stipulated that printed notices containing the daily 
hours of work should be posted "in a conspicuous place" in 
every room where employees coming under the ten-hour law 
were at work. Immediately an attempt was made to evade 
the intent of the act. A report of the enforcing authority, the 
chief of the district police, says that notices were found il- 
legibly written, "on cards four or five inches square, sometimes 
without a single break between the words, and placed over a 
doorway or some other inaccessible place." ' Extra time was 
also worked on the pretense that it was necessary to stop and 
start the machinery. Two amendments, in 1886 * and 1887,* 
were necessary in order to overcome these difficulties. The 
law then provided that the notices must be put on forms ap- 
proved by the attorney-general and supplied by the enforc- 
ing authority, and must contain the hours of beginning and 
ending work and of meal- times, as well as the number of 
hours worked each day. Similar provisions as to the posting 
of notices have been found essential in other states. 

A more recent device which provides additional help in 
enforcing the law is that of a record book, open to inspection 
by the authorities and containing the actual hours worked 
each day by each female. Few states rely exclusively on 
this device for help in enforcing the law.* Several states, 
however, require the keeping of record books in addition to 



* Riley v. Commonwealth, 232 U. S. 671, 34 Sup. Ct. 469 (1914). 
'Massachusetts, Laws 1880, C. 194. 

' Report of the Chief of the District Police, 1884, pp. 14-18, 

* Massachusetts, Laws 1 886, C. 90. 
^ Ibid., Laws 1887, C. 280. 

* One of these is Illinois, Laws 191 1, p. 328. 



HOURS OP LABOR 



243 



posting notices,' or as a substitute where daily hours are so 
irregular that they cannot be determined in advance.^ 

Even the wording of the penalty clause is of importance in 
relation to the enforceability of the law. Massachusetts's first 
ten-hour law could not be enforced so long as only "wilful" 
violations were penalized. Several states still render their 
laws inoperative by similar clauses. For instance, in South 
Dakota only the employer who "compels" a woman to work 
overtime is responsible.^ Experience shows that it is prac- 
tically impossible to prove such compulsion and that con- 
victions can be secured only when "permitting" excessive 
hours is also a violation of the law. The enforceability of the 
laws in a few southern states, which penalize only "contract- 
ing" to work overtime, also seems doubtful."* Even among 
the enforceable laws there is a difference in effectiveness. It 
is clearly easier to obtain proof of violation in a state like 
New Hampshire,^ where the employment of a woman "out- 
side" the posted hours is a violation of the law, than where 
the inspector must prove that she worked "longer" than the 
posted number of hours, as in Tennessee.^ It may also be of 
importance in successful prosecutions to note whether the 
employer alone, "his agent" or "any person" may be held 
responsible, and whether only the working of excess hours is 
penalized or, in addition, a failure to post notices, the making 
of false statements in notices and time-books and the like. 

Equitable and necessary as legal limitations on the daily 
hours of working-women are generally recognized to be, they 
have frequently been contested as out of harmony with our 
state and federal constitutions. Clearly, limiting the hours 
during which a woman may be employed does abridge her 
freedom to use her capacity for work to its utmost extent. 
The courts seem to hold in general that such a limitation may 
be made through the state's exercise of its poHce power only 
if excessive hours involve some appreciable danger to the 
class of w orkers involved or to the community. 

^ See New York, Laws 1913, C. 200, Sec. 5. 
2 See Kentucky, Laws 1912, C. 77, Sec. 5. 
' South Dakota, Laws 19 13, C. 240, Sec. i. 

* See Virginia, Laws 191 4, C. 158, Sec. i. 

* New Hampshire, Laws 1913, C. 156, Sec. 3. 
Tennessee, Laws First Extra Session, 1913, C. 121. 






'. 



f^- 



244 PRINCIPLES OF LABOR LEGISLATION 

The conflict of judicial decisions on the subject appears to 
arise from diffenng opinions as to the existence of such daneer 
Opinions opposed to legal restriction emphasize the interfer- 
ence with woman's freedom to contract to work each day as 
long as she pleases, implying that employer and employee 
stand on an equal footing in determining working conditions, 
and that an employee works long hours of her own free will 
buch a restriction of freedom of contract, they hold, deprives 
a woman worker without due process of law of the valuable 
property nght of disposing of her own labor as she sees fit 
and furthemiore is cla^s legislation because it denies her privi- 
leges accorded to men workers. The favorable decisions take 
cognizance of actual industrial conditions and point out that 
the labor contract is not freely made between equals, but that 
Its terms are settled largely by the employer and that the 
welfL-r^^ therefore interfere in the interests of the public 

The first important decision on the constitutionality of hour 
legislation for women was rendered in Massachusetts in 1876 
upholding the ten-hour law. In this case, says Professo; 
Ernst Freund,^ "the court was obviously a good deal puz- 
zled how to deal with the objections raised, disposing of 
them in a rather offhand and not altogether satisfactory 
tashion. In a bnef opinion ^ the court pointed out that the 
legislature had evidently considered factory work "to some 
extent dangerous to health," and that the statute was there- 
fore a health or police measure. This decision, however, held 
that the legislation did not prevent women from working as 
long as they saw fit, but only from working more than'ten 
nours continuously in a factory. 

The next important decision on the constitutionality of hour 
legislation for women was not rendered until 1895. ahnost 
twenty years later. During the interval the principle of en- 
tire freedom of contract between capital and labor had been 
developed .3 This doctrine was reinforced by the idea that 

1 Freund, "Constitutional Limitations and Labor Legislation " in Third 
Annual Meettng of the American Association for LabS^SatioL p s I 
C<)mmonwealth v. Hamilton Mfg. Co., 120 Mass. 383 (fsrb) 

'First laid down m 1886 in Godcharl4 v. Wigeman i n Pa St ±xx 
6 Atl. 354; Millett t;. People, 117 111. 294, 7 N. £631 (1886) ^^ ' 



HOURS OF LABOR 



245 



the right to dispose of one's labor freely is a property right, 
not to be abridged — according to the fourteenth amendment 
to the constitution of the United States— "without due 
process of law." It was on this ground that in 1895 the 
Illinois Supreme Court declared invalid an eight-hour law 
for women in factories.^ The court could see no "fair, just, 
and reasonable connection between such limitation and the 
public health, safety, or welfare proposed to be secured 
by it." 

But three years later, in 1898, the United States Supreme 
Court showed the fallacy of the doctrine of freedom of con- 
tract between employer and employee,^ and within the next 
few years, in 1900 and 1902, three decisions by state courts* 
brought out in addition reasons why women as a special class 
of workers particularly need protection. These decisions took 
into account the fact that women are physically weaker than 
men and that therefore their health is more likely to suffer 
from excessive hours of work. Any injury to the health of 
women workers is of particular social importance, since it is 
on their health that the vigor of the next generation directly 
depends. 

The year 1908, however, finally settled the question as far 
as the restriction of daytime hours to a maximiun of ten was 
concerned. The United States Supreme Court unequivocally 
upheld the constitutionality of the Oregon ten-hour law as a 
health measure.* "As healthy mothers are essential to vig- 
orous offspring, the physical well-being of women becomes an 
object of public interest and care in order to preserve the 
strength and vigor of the race. . . . The limitations which this 
statute imposes upon her contractual powers, upon her right 
to agree with her employer as to the time when she shall labor, 
are not imposed solely for her benefit, but also for the benefit 
of all." In this case and succeeding ones of a similar nature 
the influence of the method by which the legislation was de- 

* Ritchie v. People, 155 111. 98, 40 N. E. 454 (1895). 

« Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383 (1898). See "Hours 
of Labor, Men," p. 266. 

3 Commonwealth v. Beatty, 15 Super. Ct. (Pa.) 5 (1900); Wenham v. 
State, 65 Neb. 394, 91 N. W. 421 (1902); State v, Buchanan, 29 Wash. 
602, 70 Pac. 52 (1902). 

* Mulkr V. Oregon, 206 U, S. 412, 28 Sup. Ct. 324 (1908). 



1 . 



( 



I 






Ji< 



246 PRINCIPLES OF LABOR LEGISLATION 

fended should not be overlooked. Exhaustive briefs were 
prepared by Mr. Louis D. Brandeis and Miss Josephine Gold- 
mark, not so much emphasizing the legal aspects of the case 
as presenting a mass of extracts to show the actual effects of 
excessive hours of work on the health of women. In 1909, 
Illinois, whose working-women had been left unprotected 
from excessive hours since its eight-hour law was overthrown 
in 1895, passed a ten-hour bill. The constitutionality of the 
statute was immediately attacked. This time, however, the 
Illinois Supreme Court did find a clear connection between 
the measure and the protection of the public health. It 
recognized not merely a theoretical freedom of contract, but, 
as well, the facts as to the effects of excessive hours on the 
health of women. "What we know as men," said the court, 
"we cannot profess to be ignorant of as judges." ^ 

The constitutionality of a ten-hour workday was now es- 
tablished, but the reasonableness of further restriction was 
still in doubt. In 19 15, however, the United States Supreme 
Court upheld the constitutionality of the California law which 
fixed an eight-hour day as the maximum for women workers. 
The court said that the same principles were at stake as in 
the previous cases, and that while "a limitation of the hours 
of labor of women might be pushed to a wholly indefensible 
extreme . . . there is no ground for the conclusion here that 
the limit of the reasonable exertion of protective authority 
hiis been overstepped." * 

Hour legislation for women has also been attacked on the 
ground that it is class legislation, discriminating unreason- 
ably between various classes of workers, and denying that 
"equal protection of the laws" which was promised to all per- 
sons by the fourteenth amendment. The statutes have been 
attacked both because they included certain emplo}Tnents 
and because they failed to include certain others. The con- 
stitutionality of the Illinois law was questioned becau.se it 
included employees in hotels and in public institutions. One 
of the chief points raised against the constitutionality of the 
California law was its inclusion of student nurses. On the 
other han d, different laws have at various times been called 

» Ritchie v. Wayman, 244 111. 509, 91 N. E. 695 (1910). 
2 Miller V. Wilson, i^6 U. S. 373. 35 Sup. Ct. 342 (1915). 



HOURS OF LABOR 



247 



"class legislation" because they included only factories and 
laundries, and because they excluded mercantile establish- 
ments, canneries, stenography, and domestic service. The 
courts have given but little weight to this type of objection, 
asserting the freedom of the legislature either to use discretion 
in enlarging the scope of the laws ^ or to single out those groups 
of workers most in need of protection.^ 

In an Oregon case the constitutionality of regulation of 
women's hours by a commission has been attacked on the 
ground that substituting commission for court authority on 
questions of fact takes property without "due process of law." 
The state supreme court sustained the method, holding that 
it contained the essentials of due process, which it defined as 
"reasonable notice and a fair opportunity to be heard before 
some [proper] tribunal." ^ The case was appealed to the 
United States Supreme Court, where a favorable decision was 
given in 191 7.* 

Thus the working-woman's theoretical freedom of contract 
to dispose of her labor under whatever conditions she pleases 
has been restricted by the state through its police power. 
Such a limitation is rightfully applied to women workers as 
a class, because as workers they do not stand on equal footing 
with their employers in bargaining and because as women 
their health is more quickly injured by excessive hours of 
work. Furthermore, the community suffers if the health of 
any large number of women is endangered, for on the health 
of women depends the vigor of the race. The reasonableness 
of the range of employments included in the laws has been 
affirmed, and hours may now be limited to as few as eight in 
daytime work. 

(j) Men 

In contrast with the considerable development of hour 
regulations for women and children is the fragmentary condi- 
tion of American legislation affecting the working hours of 
adult men. One of the main reasons for the halting growth 

* People V. Elerding, 254 111. 579, 98 N. E. 982 (1912). 

* See Withey v. Bloem, 163 Mich. 419, 128 N. W. 913 (1910). 
' Stettler v. O'Hara, 69 Ore. 519, 139 Pac. 743 (1914). 

* See "Minimum Wage," p. 210. 



Ii I 



I 




248 PRINCIPLES OF LABOR LEGISLATION 

of this type of law has been the doubtful attitude of the courts 
in this matter, however, the courts merely reflect prevailing 
public opmion, which is as yet hardly awake to the need of 
restricting men s hours in general employments. Even trade 
unionists are sometimes opposed to shortening hours for men 
by the legislative method, through fear that it wiU weaken 
union organization. 

Most men's hour laws cover employees on public works 
or m transportation. In the fonner case the state is merely 
fixing the working conditions of its own employees; in the 
latter, the element of pubHc safety is involved. Where public 
safety is not directly concerned, legislation is common only 
for the peculiarly hazardous occupation of mining. As with 
other forms of protective legislation, however, and in view 
of our increasing knowledge of the dangers of overwork 
especially in continuous industries, the principle of hour re' 
stnction, first established for women and children, may even- 
tually be extended to cover all wage-earning men. The laws 
for one day of rest in seven, and the favorable decision of the 
Umted States Supreme Court on an Oregon law for ten hours 
m manufacturing, make it not unlikely that a period of hour 
regulation for adult male workers has begun 

a Public Work. The first attempt legally to regulate the 
working hours of men in the United States was the executive 
order of President Van Buren in 1840, stipulating a ten-hour 
day in government navy-yards.^ Since the eariy 'thirties 
special pressure had been brought to bear upon the federal 
government to shorten the working day, partly because it was 
felt that the short workday in public employments would 
have a s rong influence in reducing hours in private industry 
and partly because there was little doubt of the government's 
right to regulate the hours of its own employees. In 1840, 
therefore, while the eleven- and twelve-hour days were the 
rule m pnvate mdustry. Van Buren was induced to issue the 
order referred to. Although this was done at a time of indus- 
trial depression, he requested that no corresponding reduction 
m wages be made. ^ 

^^^^ ^^^' however, until 1868 that Congress took action 



HOURS OF LABOR 



249 



on the question and provided that *' eight hours shall con- 
stitute a day's work for all laborers, workmen, and mechanics 
who may be employed by or on behalf of the government of 
the United States."^ The law did not work as well as its 
advocates had hoped. Although it applied to contractors 
and subcontractors, it failed to prohibit agreements for over- 
time work. Its ineffectiveness in actually reducing the hours 
of any considerable nimiber of government employees soon 
became apparent, but it was not until August i, 1892, that a 
more effective law covering these classes of employees was 
passed. This act ^ was mandatory, applied to contractors and 
subcontractors, and provided a heavy penalty for violations. 
It did not, however, apply to work done on that very large 
class of goods or materials purchased by the government, 
such as army and navy equipment, vessels of war, clothing, 
boots, shoes, and paper. The attorney-general also ruled that 
the act did not apply to work done on materials purchased 
by contractors. Moreover, contractors themselves were con- 
stantly making use of the undefined term "emergency" as an 
excuse for working employees overtime.^ Agitation for a more 
inclusive measure was initiated and continued for twenty 
years before the law was rewritten. Finally the act of June 
19, 191 2, required that an eight-hour provision be inserted in 
all contracts which may involve the employment of laborers 
or mechanics when made by, for, or on behalf of the federal 
government, its territories, or the District of Columbia. Ex- 
ception was made in the case of contracts for transportation 
by land or water, for the transmission of intelligence, or for 
the purchase of supplies which could be bought in the open 
market, except armor and armor plate."* Provision was also 
made for "emergencies caused by fire, famine, or flood, by 
danger to life or property," or by any other extraordinary 



See 



» United States, Revised Statutes, 1878, Title 43, Sec. 3738. 
United States Commissioner of Labor, Second Special Report, 1896. 

» United States, Compiled Statutes, 1901, Sec. 3738. 

* Report of Industrial Commission, 1902, Vol. XIX, p. 792. 

*See opinions of attorney-general since 1912. One opinion held that 
under the appropriation act of June 6, 191 2, where contracts for ammuni- 
tion are made, the eight-hour provision relates to employees only when 
they are engaged on that particular government work and that they 
may work longer hours tor their employers (when contractors) on non- 
government work. 



2 50 PRINCIPLES OF LABOR LEGISLATION 

event or condition on account of which the President shall 
subsequently declare the violation to have been excusable. 
One year later dredging and rock-excavating in rivers and har- 
bors of the United States, which had been excluded from the 
eight-hour law of 1892 by a Supreme Court decision/ were 
specifically brought under the operation of the new federal 
act. But Congress empowered the President during the war 
to suspend the eight-hour law "in case of national emergency," 
with pay at the rate of time and a half for all work in excess of 
eight hours, and this privilege was frequently exercised.^ 

Effective restriction of hours of labor was secured for 
certain groups of post-office employees before it was for 
federal laborers and mechanics. As early as 1888 hours of 
city letter-carriers were reduced from ten to eight, with the 
proviso that pay be not reduced and that extra remuneration 
at the new rate be given for overtime. In 191 2 the eight-hour 
day was extended to clerks in first and second class post-offices, 
work to be performed within ten consecutive hours. 

In 19 1 5 legislation to restrict the amount of work which 
might be exacted of federal employees took a new turn. In 
addition to the earlier laws limiting the ntunber of hours a 
day that could be worked, clauses were enacted tending to 
limit the speed and intensity of the labor. In the appropria- 
tion bills for both the army and the navy, provisos were in- 
serted that none of the money was to be used to pay any 
officer "while making or causing to be made, with a stop- 
watch or other time-measuring device, a time study of any 
job of any . . . employee ... or of the movements of any such 
employee while engaged upon such work." It was also stipu- 
lated in both bills that money was not to be used to pay 
bonuses or cash rewards, except for suggestions resulting in 
improvements in the service.^ Similar provisions against the 
methods of so-called "scientific management" were made 
annually thereafter. 

The movement for a shorter workday on public employ- 
ments was early taken up by the various states, until by the 

* Ellis V. United States, 206 U. S. 246, 27 Sup. Ct. 600 (1907). 
2 United States, Laws 1916-1917, C. 180. 

'United States, Laws 1914-1915, C. 83, section on Increase of the 
Navy; C. 143, section on Ordnance Department. 



HOURS OF LABOR 



251 



end of the 'nineties a dozen states and several cities had eight- 
hour enactments.^ But the early state laws, like those of the 
federal government, were often faulty and unenforceable. 
The tiuTiing-point was the Kansas law of 1891, which con- 
tained practically all of the essentials of an enforceable act. 
This measure not only fixed hours of labor on direct work for 
the state, but also extended its provisions to municipal cor- 
porations and to contractors for public works, and imposed 
a penalty for violations by any public official or contractor. 

At present over half of the states have eight-hour laws for 
employees on public works.^ In practically all cases the laws 
apply to both direct and contract work, to "the state or any 
political subdivision thereof," and cover "all manual labor- 
ers" or all "laborers, workmen, and mechanics," and oc- 
casionally all classes of labor. Frequently certain classes of 
employees are excepted, as firemen, policemen, and certain 
classes of workmen in state institutions. Provision is almost 
always made for overtime in case of "emergencies," frequently 
defined as "imminent danger to property, life, or limb"; but 
unless a clear definition of the term is given, advantage may 
easily be taken of the exception to permit unnecessary over- 
time. 

Massachusetts adopted a somewhat different principle when 
the legislature in 1909 fixed a nine-hour day for cities and 
towns, but gave them the privilege of changing to the eight- 
hour day by popular vote. Four years later the legislature 
provided that in any city or town which had not yet accepted 
the eight-hour day the question must be submitted to referen- 
dum at the next municipal election, and if defeated must be 
resubmitted every two years upon securing a given number of 
petitioners.^ 

In addition to the state laws regulating hours on public 
works, a large number of cities have embodied eight-hour 



I, 



1 Baltimore (1866) was the first city, and California (1868) perhaps the 
first state, to adopt this legislation. 

2 When an eight-hour law of this kind went into effect in Ohio on July i, 
1915, during the last few weeks before that date contracts aggregating 
millions of dollars were let by state and city departments in order to 
take advantage of the lower cost believed possible under the old ten-hour 
system. 

3 Massachusetts, Laws 1913, C. 822. 






M 



}■ Ills'' 



•t ff It 



ii' 



252 PRINCIPLES OF LABOR LEGISLATION 

provisions in their charters or have enacted eight-hour ordi- 
nances to cover municipal work. These measures follow the 
main Imes of the state laws and in addition frequently specify 
among other things, the kinds of work which may be done 
directly by the city and those which must be done by con- 
tract, rates of wages, the method of selecting employees 
whether by civil service, citizenship, or trade union member- 
ship,^ and occasionally provide for physical examination of 
applicants. 

The two-platoon or twelve-hour shift system for city fire- 
men has made rapid progress within the last few years, and 
was said to be in force in some two hundred cities and towns 
in October, 1919,1 occasionally as the result of state law, but 
generally through city ordinance. Agitation for an eight- 
hour, three-shift system was being carried on by 1919. An 
ordinance of this nature went into effect in Cleveland, Ohio, 
Apnl I, 1919. The various organizations of firemen had been 
the leaders in carrying on the movement for limiting their 
hours. 

b. Private Employments. In private employments the 
movement for legislative restrictions upon the length of the 
working day for men, although associated with the ten-hour 
campaigns in the interests of both men and women in the 
reform agitations of the 'forties, did not attain national im- 
portance before the period of the Civil War, when Ira Steward, 
a Boston machinist, inaugurated a nation-wide movement for 
the universal eight-hour day by law.2 Scores of eight-hour 
leagues sprang up, the National Labor Union, the predecessor 
of the Knights of Labor, indorsed Steward's plan, and during 
the next few years laws were actually passed by a number 
of states. First among these was Illinois in 1867. These 
laws were not enforceable, and the movement died down 
until it was revived by the growing Knights of Labor, which, 
however, soon turned the course of action away from the 
legislative to the trade union method. 



> New York City, Municipal Reference Library Notes, Ck.-tober I, 1919, 
P* 37- 

2 For a full description of the history and philosophy of this movement 
seeVocumentary History of American Industrial Society, Vols. IX and X. 
John K. Commons and John B. Andrews, ed. 



HOURS OF LABOR 



253 



During the past generation progress has been made mainly 
through collective bargaining instead of by legal enactment.^ 
There have been, however, important exceptions. Over half 
the states have enacted laws shortening the hotus of employees 
on steam and on electric railways, and more than a dozen 
states have eight-hour laws for the protection of workers in 
mines and smelters. In two states, also, Mississippi and 
Oregon, ten-hour laws were passed in 19 12 and 19 13 for 
workers in manufacturing industries. 

(a) Transportation. The regulation of hours of labor on 
railroads presents peculiar difficulties. Almost invariably em- 
ployees in other industries live sufficiently near their work to 
enable them to return home at night. But the engineer or 
fireman may find himself several hundred miles away from 
home or even away from food and shelter at the end of a 
stated number of hours' work. The problem, therefore, is to 
arrange "runs" so that employees may at the end of their 
work period find themselves in habitable quarters. The 
length of the "run" must, of course, depend somewhat upon 
the length of the railway division and upon the character of 
the country through which the road extends. 

One of the early court decisions dealing with hours on 
railroads involved the case of an engineer who, after he had 
been on duty for nearly seventeen hours, was summoned by 
the master mechanic of the road to take out another train 
which it was assumed would require only five or six hours of 
work. In reality the second run lasted for a much longer 
time, and on his return after thirty-one hours' service his 
train collided with another train on the company's road. On 
the ground of contributory negligence the court denied the 



i 



* At the November elections of 1914 in the Pacific coast states of 
Washington, Oregon, and California, the Socialists secured a vote on 
initiated measures for the universal eight-hour day. All of these measures 
were defeated, largely through the opposition of the farmer vote. Reso- 
lutions favoring the legal eight-hour day for men were defeated at both 
the 191 4 and 191 5 conventions of the American Federation of Labor, 
although the vote on the second occasion was closer. This action was 
taken largely on the alleged ground that if the legislature may fix maxi- 
mum hours of work it will also fix minimum hours. The real basis of 
opposition appeared to be the fear that legislative action would weaken 
the movement for trade organizfition, 




■-W 



254 PRINCIPLES OF LABOR LEGISLATION 

engineer's claim for damages for injuries he sustained.^ Such 
situations have not been infrequent and runs of thirty-six, fifty, 
seventy, and at times even one hundred hours have been re- 
corded.2 These excessive hours have often resulted in serious 
accidents and great loss of life, and accordingly the first dec- 
ade of the twentieth century saw the enactment, under the 
influence of the powerful railroad brotherhoods, of many laws 
regulating the length of the working day for railroad em- 
ployees. 

Although the legislation is of comparatively recent date, 
already over half of the states of the Union have placed such 
acts upon their statute books. This legislation relates usually 
to two classes of employees, those directly connected with the 
handhng of trains, such as engineers, firemen, conductors, and 
brakemen, and those connected with directing the movements 
of trains, such as despatchers, telegraphers, and signal-men. 

Considerable uniformity exists in these legal restrictions. 
For men actually handling the trains the majority of states 
make sixteen hours the maximum limit for a day's work, to 
be followed by eight or ten consecutive hours of rest. Cer- 
tain classes of employees, such as those on sleeping-cars, 
baggage-cars, ^ or wrecking-trains, are frequently excluded! 
while a few roads under a specified length are exempted, as 
in New York, where the law applies only to lines of thirty 
or more miles. Practically all states make exceptions in case 
of "emergencies," a necessary exemption, but one which, if 
not defined, can easily be used as an excuse for disregarding 
all legal limitations. 

The second class of railroad employees for whom hour 
limitations have been established by law are those connected 
with the movement of trains, such as telegraphers, despatchers, 
and signal-men. Great irregularity of employment exists 
among this class of workers, since an operator's work and dis- 
tribution of time will depend entirely upon the frequency of 
train service at his particular station. Here again legal hours 
depend upon whether or not employment is continuous. In 

» Smith V. Atchison, Topeka and Santa Fe Railway Co.. lo Tex 
Civ. App. 468, 87 S. W. id5i (1905). ' ^^ 

* For a vivid discussion of this subject see paper by A. B. Garretson 
American Labor Legislation Review, Vol. IV, No. i, pp. 120-128. * 



HOURS OF LABOP 



2SS 



the case of continuous employment hours are usually limited 
to eight a day, and frequently the three-shift system is used, 
particularly in the larger railroad centers. If employment is 
not continuous, or if offices are open only in the daytime, 
hours are usually limited to twelve or thirteen a day, to be 
followed by a rest period of eight or ten hours, as with train- 
men. Most states make a few exceptions or allow overtime 
for limited periods, while two or three restrict hours only 
where a certain number of trains, as eight passenger or twenty 
freight trains, pass daily. 

Railroad employees on interstate lines are protected by a 
federal statute, enacted on March 4, 1907, applying to all 
"persons actually engaged in or connected with the move- 
ment of any train" in the District of Coliunbia, or in any 
territory of the United States, or on interstate hues.' By 
this act hours are limited to sixteen a day, with certain pro- 
visions for rest periods; ^ but no train-despatcher, telegrapher, 
or any employee who transmits messages or orders by tele- 
graph or telephone "shall be required or permitted to be or 
to remain on duty for a longer period than nine hours" in 
places continuously operated day and night, nor for more than 
thirteen hours in places operated only during the daytime. 
Overtime in cases of emergency, which is carefully defined in 
the act, may be permitted for four additional hours on not 
more than three days a week. The Interstate Commerce 
Commission is charged with the duty of enforcing the act, 
and it may require reports of violations and of the causes for 
overtime, and may, after full hearing, extend the period of 
permitted overtime in special cases. By the operation of the 
federal act the great majority of railroad employees, even in 
states without hour limitation laws, are protected, since but few 
employees are engaged in intrastate train ser\^ice exclusively. 

But this law was to some extent superseded by the so-called 
"Adamson law," providing a basic eight-hour day for rail- 
road trainmen, which was adopted by Congress September 2, 
19 16.' Unusual public interest was attached to the passage 
of the law, which was rushed through Congress at President 

' United States, Laws 1906- 1907, C. 2939. 
*See "Rest Periods," p. 272. 
•United States, Laws 1916, C. 436. 



I 



hi 



256 PRINCIPLES OF LABOR LEGISLATION 

Wilson's request in order to avert a nation-wide railroad strike 
which had been called for September 4, the issue being the 
basic eight-hour day which was demanded by the men and 
refused by the officials. The law fixed eight hours as the 
standard for a day's work, and forbade the reduction of wages 
because of the change until after an investigating commission 
created by the act had reported. It was immediately claimed 
by opponents of the law that it was not really a measure for 
reducing hours, but a subterfuge for increasing wages. The 
report of the commission created by the act, submitted to the 
President on December 29, 19 17, showed that both wage 
increases and hour reductions had occurred among the more 
than 300,000 employees affected by the law.* The hour re- 
ductions were most frequent among employees working in 
railroad freight-yards. Reports covering 175,744 miles of 
road showed that 11,390 yard crews had been placed on eight- 
hour shifts, and only 3,486 crews were still working more than 
eight hours. According to a special study on wages covering 
69,202 employees, 12.6 per cent, received no increases in 
January, 19 17, as a result of the law, and 30.2 per cent, re- 
ceived less than $10 a month. The largest increases, averag- 
ing 24.6 per cent., were received by freight-yard crews, the 
smallest, 2.7 per cent., by employees in passenger-train service.^ 
Somewhat akin to the problem of the trainman is that of 
the motorman and conductor on street railways. Until the 
early 'eighties, hours for street-car employees were commonly 
from twelve to fourteen a day, and often ran as high as sixteen 
to eighteen. In 1864 a coroner's jury in the city of Philadel- 
phia, passing upon a fatal accident, said: "Nor should we 
expect vigilance and attention from employees worn out by 

^ United States Commission on Standard Work Day of Railroad Em- 

Eloyees, Created by Act of Congress, approved Sept. 3 and 5, 191 6, Stat. 
,., p. 721, Sec. 2. Repoft of the Eight-hour Commission^ Washington, 

191 8, 503 PP- 

'.A new method and a new form of regulation of the hours of railroad 
employees is illustrated by the order of June 9, 19 19, by the Kansas 
PudHc Utilities Commission, requiring freight stations in Topeka to cease 
receiving freight at 4 p.m. every weekday except Saturday. The order 
was given to enable the freight handlers to fimsh their day's work at a 
reasonable hour. The commission stated that the matter was "largely 
a social question," and that whenever possible individuals should have 
the evenings free, since these by custom were devoted to "recreation, 
self -improvement, and the family circle." 



HOURS OF LABOR 



257 






seventeen hours of incessant labor. . . . The constant occurrence 
of passenger railway accidents demands from this jury an 
unequivocal condemnation of the companies who compel men 
to do work to which the bodily and mental frame is not usually 
equal." ^ 

During the 'eighties the states began to enact legislation 
on the subject, until now about a dozen laws have been passed 
limiting hours usually to ten or twelve a day. Most of these 
acts provide for overtime in case of unexpected emergencies, 
and many require extra compensation for such emergency 
work, but very few give adequate attention to the equitable 
distribution of working-time. Although street-car service is 
one of the most constant forms of emplo3mient, the public 
demands not only regularity, but also additional service at 
the rush periods of the day, on Sundays and holidays, after 
the theater, for excursions, public games, or special celebra- 
tions, and on many other occasions, most of which do not 
occur with any degree of regularity. Men must be employed 
to meet these irregular and often unexpected demands. For 
this purpose a long waiting-list is usually kept, and men are 
employed and paid often for only two or three hours at a 
time. The presence of these extra men acts as a stimulus to 
the regular men, who, for fear of losing their jobs, will work 
for a longer time than the normal period. This situation fur- 
nishes an additional reason for the enactment of legislation 
in several states definitely fixing the maximtim number of 
hours within which the legal day's work must be performed. 
Rhode Island in 1902 provided that a day's work should not 
be longer than ten hours, completed within twelve consecu- 
tive hours' time.2 Although this measure specifically per- 
mitted contracts for overtime, the supreme court of the 
state held the ten-hour day binding upon all companies, since 
the legislature had expressly stated its intention to limit 
the hours of all employees covered by the act.^ Massa- 

» United States Bureau of Labor, Bulletin No. 57, March, 1905, "Street 
Railway Employment in the United States," Walter E. Weyl, p. 610. 

'Rhode Island, Laws 1902, Cs. 1004, 1045. 

' Opinion to the governor (In re Ten-Hour Law for Street Ry. Corpora- 
tions), 24 R. L 603, 54 Atl. 602 (1902). "The law before us is more clearly 
within such power, for the triple reason that it deals with public corpora- 
tions, the use of a public franchise, and a provision for public safety." 






^S8 PRINCIPLES OP LABOR LEGISLATION 

tion of time. In .TXe^U^tuT^^T °^ "'^^^ distribu- 
te nine a day and ^t\ LveSotertiiTf^ ^'^'^'-^ h°-^ 
mum time within which the lahnr^ . I ^"^^ ^ *e maxi- 
over, this act spedfically prov°^^^^^^^ More- 

Ploj-ment or refusal of future wort t/^^* "^ '°^^ "^ ^m- 
m securing other work will Z °' .^'"'^^""g an employee 
overtime, which is p"r^shaTfeb^.T'^''"^ ^ "requiring" 

Another method of SaZ h ^^ T"^*^" 
railways is by the iUS of't' f ^"'^^'^ ''^ ^^-^^t 
granted to railway comnnZ, ti. "^"^^ '« franchises 
common in America San -n P ' """'^"^ '' «i"^h less 
for instance, one ofthe lab^r ^"7^*" ^'^- ^^ Paris, 
franchise for the subwa; J'a^thaTda! "r '^'P^*^** ^ ^^e 
ceed ten. Among the few A,v,i ^ ''°'"^ ^^lou^d not ex- 

this plan are Dallal wWe^^weTve h'"'' !''* '"^^ ^«P^ 
and^Detroit. where a tenl^^rt;: ^^ron^^S^ 

fetef ^Jr^Tmii^rh^-rdKr '- '-' ^» ^ 

of twenty-four while in port ^ ! ^ ^'^'^^^ *° °'°e out 
twelve out of twenty-four wiife at ""'' TH Tf^^""-' *° 

"(?;£:r.:L^?i.r constLtXTwo^- -^lu^ve 

states have taken still anothcrstTp^lhl^'""'^''"^^"^^^^ 
tion regulating the hours of lab^rTor^ ^^^^ ^"^^^^-^ '«g'«la- 
ments where the safety or welfSe S t^.'" '" ^7^*" ^P'°y- 
jnvolved. This class of leriskHon 1 ^\^^"^'^^ P"bKc is not 

indus^r^e'oft^^^^^ ^" ^^^-t position in the 

one-half million v^rCef ^;f r' f^^^ P^^y <^ver one and 
Co«n, alonelT4\rrrfeV^^ ^f^" 

^!^-n organizations in llt^t^etT^^^ 



HOURS OF LABOR 



259 



liferous branches of this industry have been among the largest 
and most powerful in America. 

The special dangers of mining have been frequently pointed 
out, as well as the greater hazard in American than in foreign 
mines. It has been shown, for instance, that the average 
fatality rate in coal-mining in the United States during the 
ten years ending with 1910 was 3.74 a 1,000, in comparison 
with a rate of 2.92 for Japan, 2.1 1 for Germany, 1.69 for France, 
1.36 for Great Britain, 1.04 for Austria, and 1.02 for Belgium.^ 
The speed of the American miner is indicated by the fact that 
he produces about five times as much coal in a day as does 
the miner of either France or Belgitim. This is partly due, 
however, to greater use of machinery and to the more recent 
development of American mines, which permits a greater 
proportion of work to be done near the surface. These lat- 
ter conditions are, however, partly offset by the fact that 
American miners work about eighty days less a year than do 
the French and Belgian miners.^ Investigations of health 
conditions in the various branches of this industry have re- 
vealed the presence of injurious and explosive dusts, noxious 
gases, poisonous metals or chemicals, sudden and wide varia- 
tions of temperature and moisture, and impure air often 
vitiated by powder smoke; in addition miners are commonly 
exposed to diseases arising from soil pollution due to inade- 
quate sanitary facilities.' 

Safety and health dangers in the mining industries have 
become so well known that by January, 1920, sixteen states, 
including practically all in which the mining industry is im- 
portant, limited hours in the various classes of this work to 
eight in one day.* Many mines operate on the two- or three- 
shift system and a few of the laws make special provision for 
additional hours at the time of changing shifts. These eight- 

^ United States Bureau of Mines, Bulletin No. 6q, 1913, "Coal-Mine 
Accidents in the United States and Foreign Countries," Frederick W 
Horton, p. 87. 

2 /^., p. 88. 

'S. C. Hotchkiss, "Occupational Diseases in the Mining Industry," 
American Labor Legislation Review, February, 19 12, p. 131. See also 
publications of the United States Bureau of Mines, Washington, D. C. 

* Alaska, Arizona, California, Colorado, Idaho, Kansas, Missouri* 
Montana, Nevada, North Dakota, Oklahoma, Oregon, Pennsylvania! 
Utah, Washington, Wyoming. 



m 




1 

I 



.60 PRINCIPLES OP LABOR LEGISLATION 

feet in tunnel work, are occa<!,-nr,=riL f . *°* O"" ^°° 

some of the deeper m^e^eZfl. T^^^' ^'''^°"gh '" 
ties of proper Intl^Zt^tZ^'^^'^^ '''' ^'^'^- 
positive menace to health ^ nn^inT , ^ • ^"""^ "^ ^o^k a 
attempted to make any sdentS^^T/ 7 '" *^'^ "°""*^ ^as 
on^he decrees of dange^ Sel^Sa^S^ntr ''^'^ 

in SlarofN^C? £tr -- •'r™^^ be seen 
a Massachusetts regulation !rvSf' ^"1 ?«""-y'vania, and 
Under all of these^S ^rf? ^ ''°.* '" ^"'"P'^ed air. 
regulated by the dewee of nr« "^ ^"^ ^^^ ^°*«g h°«« 
done, but they are Se^^ntrf^""'^'',^'"'^'' ^he work is 
interval between 4ich aS vale 'T^ ^"°^'- ^^e rest 
as follows: ° ^^^ accordmg to the pressure 



If the pressure 
exceeds 
Normal 
21 pounds 
30 

35 
40 

45 



1 1 



< < 



hour 



5«/ does not Number of hours* TnUr,.ni a *. 

exceed work in 2^ S^Sl 1'^'? 

8 hours "'^''f *«f /'^rtorfj 
6 " 

4 " 
3 

2 



21 pounds 
30 

35 
40 

45 
50 



<< 



2 hours 
3 
4 
5 



I < 



4 < 



section, when legal Sctiom do t'l*"^ '" '^^ P'«=«*ng 
health or safety but amSv"!.-? T ^'^^^^ ^^^^ Public 
dividual adult male woE"v^"iLV" ^^''^ °^ ^^e in- 
in America. In foreiln cou ntri^/ ^-T '^^^' regulations 
the European war mf nv W T' ^^'^''^ «ince the end of 

an eightlur day-a^JeX J wS"oK "tf f '"^ 
^^ deL tiX'aSrwSl^rrprandlg 

^ See Arizona, Laws 19 12 C 28 

worAl^^e^^^^^^^^^^^ at a depth of 2,000 feet 

men being freely supplied with ke-watl ^^'"P^^^ture of 15^0 p^^f^; 



HOURS OF LABOR 



261 



exceptions to be permitted, and those which merely lay down 
the general principle in the law and leave detailed application 
and exceptions to be determined by administrative orders.' 
The first annual session of the International Labor Confer- 
ence arranged for by the peace treaty, which met at Washing- 
ton in November, 19 19, headed its program of subjects for 
discussion with the eight-hour day and adopted a draft con- 
vention for submission to its members through the League of 
Nations. This provides for the enactment of legislation for 
an eight-hour day and forty-eight hour week in mines, fac- 
tories, building, and transportation. Provision is made for 
overtime in certain emergencies, to be paid for at least at 
one and one-quarter times the regular rates of pay, for some 
flexibility in daily hours by agreement between labor and 
employers' organizations, and for a possible fifty-six-hour 
week in continuous industries. On account of alleged tardy 
development of industry, a fifty-seven-hour week was allowed 
in most Japanese factories and a sixty-hour week in India, 
while Greece and Roumania were allowed to delay in putting 
the eight-hour limitation into effect. The enforcement of this 
convention, together with the recent spread of eight-hour 
laws, will put the industrial workers of western Europe prac- 
tically on an eight-hour basis through legislation. 

In contrast to the European situation, in the United States 
Alaska alone has enacted any general eight-hour legislation. 
There the legislature in 19 17, in response to an initiative vote 
of the people, passed a comprehensive eight-hour law,^ which 
was, however, shortly thereafter declared unconstitutional. « 
The general declarations that eight or ten hours shall con- 
stitute a day's work in the absence of special contracts or 
agreements, found in the constitutions or statutes of about 
half the states, amount merely to a statement of principles 
Tney have practically no effect upon the actual length of the 

l.L^^'S °^ *^^ c°'?^'' i^yP? Vr^ ^°^"^ ^^ Czecho-Slovakia, the Nether- 
lands, Norway^ Switzerland, Uruguay, and New Zealand ; those of the 
latter sort m France, Germany, German Austria, Spain, Poland Portu- 
gal Ecuador, Panama, Finland^ and Russia. Several of the Australkn 
states specify that their arbitration courts must not exceed the eight-hour 
umit in making awards. ^ 

^ Alaska, Laws 191 7, C. 55. 

^ See " ConstitutionaHty, p. 270. 






11 






'" ™™CIPLES OF LABOR LEGISLATION 
Vide . poaity f„ ^;„|„,.^ overlam, nor do they „(«„ p,^ 

men in Louisiana, fo" pE? ' / °"^' ^°'' stationary fire- 
Nevada, while a ien houT Ltfs T;.*-'"'"' '" ^"'^°"a ^nd 
mills in Arkansas, in b^Z in K t'" '*^- ^"^ P'^ing- 
'n New York, in certaif "xt te n^^in^T ^' '" '^''->'^'-^' 
and^South Carolina, and in a fl^^L^ Sl^^-^^^!^^ 

W fdj^^^^^^^^^^ Oregon in ,,,,• 

all classes of employees in ^^L T ^'" exceptions) for 

The Oregon statut'^^^ f^rTloTlrr^ '"^"^'"- 
so per cent, increase in pav is X.n l, T*""^' P'-ovided a 
as amended in 19x4' Sts iwe,;. ' "'^ Mississippi act 
each of the fit^t five day^oTthe S ^i,"".""*""' "^^^^^^ °n 
from the last day of the v^ek ' '' *""^ *° '^ deducted 

c- Conslitutionalitv Thptnro.^.^- 1 
in the constitutionality of ma^"ri,^^^\P"""P'^s «^°lved 
equally important in cLn "ttrwTh hrrS r "r" ^- 
There is, on one side, the rieht affrl I 'egis'ation for men. 
of one's own labor, and on fhe o h^ .r""^"' ^°'" '■^^ ^^^Posal 
this right by the pdi^ Z.erl t^ ^ ^^ ^"'""^ limitation of 

While it is now'^diS7Luirf fu^lT °'r'"' ^^if^- 

women is a rightful exerdse of th^ > ^"""^ 'eS'^lation for 
the question is somewSore ,n J° "^ ^^^ °^ ^^e state, 
for men. The consSo^a sLtuf T.,!" f ^""^ ^° ^^^^ '^w 
seems to depend on the puSseofTherol't' "."''' '^"^ °' '^^^ 
of workere covered. The cmfrtf 'estnction and the class 
tion which applies to pubhc work"Tl, ": "P''°''' ^°"^ '^^'^'a- 
the public safety is dir^tlv 01^5 f *° P"^^*^ ^^u^Mess if 
men, but opinions are conflictrnf"''^u ^ ^'^ railroad train- 
vate employment ZrTt£s2ty\°Hl ''''''""°" ^"^ P^" 
fl^lEl^yees alone is invoIvS. ^' ^' "^ ^"^"^^ °f the 

■ Mississippi, Laws 1912 C im 5 z^. 

Mississippi, Laws 19,4; c.' ,6^: '^^°"' ^a^^s 1913, Q 102. 






HOURS OF LABOR 



263 



Although several earlier decisions were unfavorable, in 1Q03 
the United States Supreme Court upheld the Kansas act of 
1 89 1, which established the eight-hour day in public employ- 
ment both for direct and for contract work. "It belongs," 
said the court, "to the state, as guardian and trustee for its 
people, and, having control of its affairs, to prescribe the con- 
ditions upon which it will permit work to be done on its be- 
half, or on behalf of its municipahties." * 

But while this decision supported the right of the state to 
control the action of its political subdivisions, state courts have 
not always followed its precedent on this point. In New 
York, for instance, this right was denied on the ground that 
municipal corporations are local bodies supported by local 
taxes, and are therefore on the same footing as private cor- 
pordtions.2 In order, therefore, that there might be no 
future question on these points, the people of the state in 
1905 amended their constitution expressly giving the legisla- 
ture the power to fix all conditions of labor on public work 
whether done directly by the state or through contractors ^ 
A similar amendment to the Pennsylvania constitution was 
voted down by the people in 1913. But on the whole, de- 
cisions have m recent years followed the main principles of the 
decision m Atkin v. Kansas. 

In private employments, when the element of public safety 
IS cleariy and directly involved, as in most legislation regu- 
lating working hours in transportation, the courts have raised 
but few objections. Though during the early days of this class 
ot legislation opinions varied considerably, the close connection 
between the safety and welfare of the traveling public and 
the physical condition of these employees has now been so 
well established that recent decisions almost invariably up- 
hold the mam principle of hour limitation as a valid exercise 
of the police power. In a decision given in 191 1 the United 
States Supreme Court said: "The length of hours of service 
has direct relation to the efficiency of the human agencies 
upon whi ch protection to life and property necessarily de- 

J Atkin V. Kansas, 191 U^S. 207, 24 Sup. Ct. 124 (1903). 

' People eo: re/.Cossey r. Grout 170 N Y atj 7^ Ki P ^^. r,^.. \ 

En?'^/°;''^''^n/^'^• C- 5°^ Upheld' ij;- Peo%V%'^tms 
Eng. & Cont. Co. v. Metz, 193 N. Y. 148, 85 N. E. 1070 {1908). "'""^'"= 



"^ 



I 



fl 



^«4 PRINCIPLES OP LABOR LEGISLATION 

e'^ptyeeV Jnd'S:;"cotr° '^''^^'^ ^^ '^^ safety of 
enactment of laws re ati^^ toTil^"-' "°' ''^'^'^ to the 
was also competent to coL der and to r''""*^^^' ^^' '* 
the dangers incident to the strafe of . •''^T'" ^° '^'^^^ 
on the part of engineer. rlT 1 ^''^^ssive hours of duty 
raphers. and the^Sons Sr« 7' 'f^^-^espatche:^, telej^ 
by the act." ■ ^ °"' unbraced within the class defin^ 

of the railroad company 1 cai!??^";^- ^"d the liability' 
overtime work. The LZ.T ^^^"^^"ts connected with 

legality of the sol^ld" 'fpht'^ri'ck^^^T^^'^ 1° ^°"^''^- '^ 
under the federal law the ZZ,;IIa' u ^^^ ^^""^ '^eld that 
divided into two parts t'tW^ he " °' ''"^''^ "^^^ ^e 

In some cases this rule hl^ led to T ^^^nty-four hours.' 
the enforcement of S law and aS,^""T"'"' '^''^^^'^^ >" 
brought into court in wh^h train ^ ^ °^ ^^^' '''^^^ been 
of service extended beyoS Iher^T^" ^^''^ ^^^ '^^^ time 
temporary "releases" Tict wf^T "'''^" ^^"^'^ ^y 
^n r<^te. In a recent cL th! tt v^ o'^™' ^ere delayed 
of Appeals for the Ith cl^l gua f /'"'^^ ^'^^""^ ^ourt 
this practice by ruling that ^^h , 1^ f ''^?"'' *" abuse of 
break in the continuity of se^2 "fT^'J^ '^""^'•^"te a 
'nsure "a substantialVnd 0^,^ ^^^^emntly long to 
crcumstances. Whether or not 1 "t,T°^ °^ '^''" '" ^11 
penod was a question for the jurv to h1 T- ^""^ ^°' ^"^^ ^ 

37. 31 Sup. a 36^- agMr"lJr''r'?<? Santa Fe R. R Co „„ IT o 



HOURS OF LABOR 



265 



act, the higher courts have practically always given precedence 
to the federal act, largely because of the difficulty of separat- 
ing interstate from intrastate operations. But where no con- 
flict exists both laws may operate at the same time. Among 
the later decisions on this subject is a New York case, carried 
to the United States Supreme Court, involving the validity 
of the New York eight-hour law for train-despatchers. In this 
case the New York court held that the act was a valid exer- 
cise of the police power, and that no conflict existed between 
state and federal authority since the federal law limiting hours 
to nine a day "prescribed a general minimum limit of safety 
applicable to average conditions throughout the country," 
whereas the New York statute limiting hours to eight a day 
"simply supplemented" the federal act by raising the limit of 
safety in response to conditions prevailing within the borders 
of the state.i On appeal the United States Supreme Court 
on May 25, 19 14, gave a unanimous opinion denying the con- 
stitutionality of the New York act, as in direct conflict with 
the federal act, holding that "Where there is conflict the state 
legislation must give way. Indeed, when Congress acts in 
such a way as to manifest its purpose to exercise its con- 
stitutional authority the regulating power of the state ceases 
to exist." 2 On the point made by the New York court that 
the state law merely supplemented the federal act, the federal 
court said: " It is not that there may be a division of the field 
of regulation, but an exclusive occupation of it when Con- 
gress manifests a purpose to enter it. . . . It [the. federal act] 
admits of no supplement; it is the prescribed measure of what 
is necessary and sufficient for the public safety and of the cost 
and burden which the railroad must endure to secure it." 
Another contention made by the New York court was that 
in any case the federal law had not become operative at the 
time of the alleged violation, November i, 1907. But the 
federal court said that it "considered it elementary that the 
police power of the state could only exist from the silence of 
Congress upon the subject and ceased when Congress acted 

nil^Q^^Jt "• W't ^- ^' ^tV l^^ ^- Y- 369. 91 N. E. 849 (1910). See 
also Smith r. Alabama, 124 U. S. 465, 8 Sup. Ct. 564 (1888). 

Ene R R. Co. 1; New York, 233 U. S. 671, 34 Sup. Ct. 756 (1914). 

See also Mmnesota Rate Cases, 230 U. S. 352, 33 Sup. Ct. 729 (1913) 



266 PRINCIPLES OF LABOR LEGISLATION 

or manifested its purpose to call into play its exclusive power " > 
The important question as to whether the New vltkZt^^ 

no™ I T?"" °^ '^' ^°"*^°' ''^'^^ by the state over Z7 

sivpntf •^"'^ ^^' ^^'° ^^^ « these 4ses, but no^ondu^ 
sive decision was reached in either court. 

I he Adamson law was treated by the maioritv nf tu^ c 

Etd"^""^ r ^" ^=''«"^'°" °f '^°- SsSn ttte^S 
raitoad employees, the Chief Justice declaring that ^« the 
authority to permanently establish it [the basic eieht hour 
putlbi: '■ tT'^ --*ted - to lender the s^bjecttt dTs- 
Sges was Tiat'tr^ " *'' °''^''='*°" "' '""^ ^^"^ dissenting 
S stl?^te Vt ^^'"."^ ""f "°* ■'^" '^^^^ but a wage! 
c^tfi«^ ^n *K T '"'''J°"ty "Pheld the regulation of wages 
contained in the law on the ground that the constitution c^e 
Congress power over interstate commerce to preserve R ai^d 
that any act necessary to its preser^^ation is cons^tut^onal 
They also characterized the law "as the exertion bfcongret 
aporoXT^ "',".' i^-doubtedly possessed to provTby 
appropriate legislation for compulsory arbitration. " « ^ 

The nght to limit the working hours of men in mines has 
,^ /r*r i^ undisputed since the case of Holden . Hard^ 
woS "^Th "^ *'^ Utah eight-hour law for this group of 
riahtT'v V it "T ^^ ""* ^" mportant bearing upon the 
i::ghtto_I,m,t the hours of adult men in general em^oM 

cl^X^.f''^ ^^"'^ ^y- "■ Washington. ... U. S. 370. 3. Sup. 

after this favoraw/dSWe ufe^L?'*^'*9«)- In>nied,ately 
rado enacted a law identical with ti,„ AvI, "^^^ Supreme Court, Colo- 
Colorado Supremr&.urt In a7 Li? ,^^ ■*S'""^- 0"« y^ar later the 

the opinion ll Z Un" tl'"sS\«"sTO:''Srtld !? V ^"^1"" *° 
unconstitutional on the irrnnnH t w „ uf- "Tj ^"'^ declared the act 
since only the emf^oyee Wmsclf is in „?^ h'^ 7'"'^* ^^ "°' i"™'ved, 
26 Colo. 415, 58 Pac ro7i^i8oa\l ^S,^^'' '""^ '"'"" (^'' « Morgan 
Colorado to have the shorti^^W»^ determmed were the mine.? o^ 
that they succeeded in ioo'Tn^^ri/„ ^^""*''^ *''<'™ ^V legislation 

tion proJ^iding for the ei^ht-hourdTy"! Art T'^^^al*" t' "^f'^l'?- 
fact, It was not until tone thaf +1,^ iLJ i^' ^' ^^' ^5a). Despite this 

hou^ law. But not u^il lotr wL^'^^*"/^ ^"?"y ^^^^^ ^Vi eighth 

was. however. imrn^Sy 2b ecTed bT thS^effo^^^^ f.' P^^^^' "^^^^ 
referendum vote Not imHl tor , ^ ^}u ^ .^ ^ ^^^ operators to a 

an effective act in force These^unfor?nn'il' "^"""^i: ^"^"^ ^^"^^^ ^"d 
part in creating the bitter sVhI.^^^?^*- ^""^"^ ^^^^ P^^y^d no small 
rado in I9i3.?9i4 '^"^"^ ^^ ^^^^ "^^"^^^ ^hich occuired in Colo- 



HOURS OF LABOR 



267 



that it should be given special attention at this point. In 
connection with the custom of passing upon the validity of 
state legislation under the fourteenth amendment to the 
federal constitution, the court said: "This court has not failed 
to recognize the fact that the law is, to a certain extent, a 
progressive science; that in some of the states methods of 
procedure which, at the time the constitution was adopted, 
were deemed essential to the protection and safety of the 
people, or to the liberty of the citizen, have been found to 
be no longer necessary; that restrictions which had formerly 
been laid upon the conduct of individuals, or of classes of in- 
dividuals, had proved detrimental to their interests, while, 
on the other hand, certain other classes of persons (particularly 
those engaged in dangerous or unhealthful employments) have 
been found to be in need of additional protection." 

Two far-reaching conclusions were set forth in the opinion 
given in this case. The first involved the question, Are the 
health dangers connected with the occupation of mining suffi- 
ciently serious to justify the legislature in separating out this 
class of employees and interfering with the right of free con- 
tract under the police power of the state? On this point the 
court said: "But if it be within the power of a legislatiu-e to 
adopt such means (provisions for proper ventilation, speaking- 
tubes, protection of cages, etc.) for the protection of the lives 
of its citizens, it is difficult to see why precautions may not 
also be adopted for the protection of their health and morals. 
It is as much for the interest of the state that the public 
health should be preserved as that life should be made secure. 
. . . While the general experience of mankind may justify us 
in believing that men may engage in ordinary employments 
more than eight hours per day without injury to their health, 
it does not follow that labor for the same length of time is 
innocuous when carried on beneath the surface of the earth, 
where the operative is deprived of fresh air and stmlight, and 
is frequently subjected to foul atmosphere and a very high 
temperature, or to the influence of noxious gases generated 
by the process of refining or smelting." 

The second conclusion relates to inequality of bargaining 
power, already treated in Chapter I. 

As to regulation of men's hours in general factory employ- 



:'.'l 



:; f. 




^6S PRINCIPLES OF LABOR LEGISLATION 

and its LJrJ^nfZX^' if tf ""^ '" *^ '^"'^• 
the ten-hour law it was contended t^J^u ^^'""^ ^^*'"^' 
a health but a wage law I^ it 1 -^fV^,^ ""^^"^^ ^^ "o* 
time at inc^eased'rater'o?nL'^T I'"''" ^"^ °^ °-«'- 
"apparently the prov s ons for nei .V ^', ^"^ ^'^'^ *^t. 
time on exr,re« n!.n^ ! ■ Permitting labor for the over- 

theenfor^I'nToahe randinr'^ T °''''' *° ^^""*-"e 
for employing one not^o" C^T*"T' " """^ P^"^'^ 
The decision of the state rn^y^ t ,i.^ ''""'^ overtime." 
to the effect that thf WsTsome oth' *'' "^'-"^ 'l""*^'^ 
than those prescribed b^the act ^d th J T"l""' ^^""^ ^^^ 
sanctioned by custom in W.i -a "'^.^'lat a ten-hour day was 
could not be hdd tTte^r.' "^"f ""^' ^° '^^' the regulation 
tention that the law d^scnm S"' °' ^^'*'-^^- ^he con- 
employments coverldty'riStlfem f ''''°"" ^""^ °^'^- 
was disposed of by the facS tL , ^^^ ^'^^^ ^°'- '^^o^ 

a wages act. * '''^ '^^ '^^ ^n hours and not 

Yorklawprovidngatetw.av'f ^^^^ u^"' '" ^^''='^ ^ ^ew 
A careful reading of the "arfe^ t^ •°'' "^^T' ""^ overthrown.^ 
the court did not eel that s^^Z? ''."°'"'' ''°^^^^'' ^hat 
to it indicating the IniurioL^^r ''^'^u"'^ ^^ P'-^^^nted 
to justify the ^Ift "^"."°"^ «^f t upon the health of bakers 

their freTdl%to„l:r"fi^^^^^ °"* ^"^ mterferingtS 
long hours and the Sciaf e£'%T''\''^"'*'' ^^""^^^ °f 
amply supplied in S Sin e^eln ^b 1 ""'^''"^ ""' 
Felix Frankfurter and ToseoW r m *, ^"^^ Prepared by 

4 See pp. 218 and 246. ''^''^'^' 45. 25 Sup. Ct. 539 (,905). 
Mississippi, Lawb ^912, C. 157. 



HOURS 0¥ LABOR 



269 



excepting cases of emergency or public necessity, was three 
times taken to the state supreme court and was each time up- 
held. The court held that it was not bound by Lochner v. 
New York, since in the law decided against in that case no 
provision was made for emergencies under which the "lightest 
violation of the provisions of the act would be innocent." 
The court also called attention to the physical and mental 
strain of present-day industry as compared with earlier 
methods. One of the few instances where a court has specifi- 
cally recognized the right to leisure occurred in this case, 
when the court said: 

We pause here to remark the notable fact that it is rare for the seller 
of labor to appeal to the courts for the preservation of his inalienable 
rights of labor; this inestimable privilege is generally the object of 
the buyer's disinterested solicitude. Some day, perhaps, the in- 
alienable right to rest will be the subject of litigation, but as yet this 
phase of individual liberty has not sought shelter under the state or 
federal constitutions.^ 

The case of eight-hour legislation for men in general employ- 
ments had not, up to Januar3^ 1920, been passed upon by 
the United States Supreme Court. The early unenforceable 
eight- and ten-hour laws were generally upheld by the courts, 
but when Nebraska in 1891 attempted to make such a law 
enforceable by requiring double pay for all work in excess of 
eight hours, farm and domestic labor being excluded, the law 
was declared unconstitutional by the supreme court of the 
state in 1894, both on the ground of class legislation and as an 
interference with the right of free contract.^ 

In 19 1 2 the Supreme Court of Louisiana declared an hour 
law unconstitutional on the ground of unwarranted classifica- 
tion of industries. This act limited the hours of stationary 
firemen to eight a day in manufacturing or business establish- 
ments, offices, or warehouses operating day and night, but 
exempted certain other industries, as the petroleum, 'saw- 
mill, and cotton-gin industries, and sugar plantations.^ This 
classificat ion of industries appeared to the court to be purely 

MLi1li'6J-^;^,7^^2):""'" ''"' ^"' ^^"- ^^' '' ^' 9^3; 103 

^ Low r. Reese Printing Co., 41 Neb. 127, 59 N. W. 362 (1894). 
^Louisiana, Laws 1912, No. 245. 



I\ 



tj^r, r 




^mti 


!B 



! * 



N^ 



P: 



270 iPRINCIPLES OF LABOR LEGISLATION 

arbitrary, since it was difficult to see why long hours were 
not as Injurious m sawmills as in warehouses or offices On 
this point the judge said: "There is no suggestion in the 
f ecord that the occupation of stationary firemen is dangerous 
or unhealthy to such a degree as to warrant the interference 
of the state. ... The toil per se could not have warranted the 
interference of the legislature because it permitted unlimited 
toil m the plants excepted from the operation of the act 
Whatever may have been the motive for the passage of the 
act, we are satisfied that it was not based on health con- 
siderations." ^ 

Here again the court did not feel that sufficient evidence 
was presented to justify the classification of industries as 
contained m the law, and after this decision the legislature 
amended the original law, making it apply to all stationary 
engineers in cities with a population of 50,000 or more.^ 

The Alaskan eight-hoUr law, which covered all workers in- 
cluding partners and corporation officials, except in certain 
emergencies, was declared unconstitutional in 19 18 in a fed- 
eral circmt court.^ The judge held that the statute, applying 
as It did to all occupations alike, was not shown to be a health 
measure, but was a "meddlesome interference" with individ- 
ual nghts. By interfering with the right to earn a living 
which is a property right, it was held to have violated the 
fourteenth amendment to the federal constitution. In addi- 
tion, it was declared to be class legislation, which was forbidden 
by the organic act creating the territory. On similar grounds 
the Sohcitor-General of the United States declined to allow 
the case to be appealed to a higher court, so that no final test 
was had on this, the only enforceable universal eight-hour 
law covenng private employment enacted in America up to 
the beginning of 1920. 

But even though the constitutionality of eight-hour laws 
for men m general is still undetermined, the Supreme Court 
deasion in the Oregon ten-hour case opens the way for much 
larger regulation of the work of adult males than has here- 
tofore bee n undertaken in this country. Equahty of bargain- 

J State r. Barba, 132 La. 768, 61 So. 784 (1913). 

' Louisiana, Laws 191 4, No. 201. 

' U. S. V. Northern Commercial Co. and George A. Coleman (1918) 



HOURS OF LABOR 



271 



ing power may be secured in some cases by freeing labor 
organizations from existing restrictions upon acts, not in them-, 
selves unlawful, which are necessary to carry out effectively 
the purposes of organization.^ But where organization fails 
to protect any considerable group of workers or where thig 
protection is not provided in a reasonable manner, the sub- 
stitution of the power of the state becomes a justifiable and 
necessary interference with the right of free contract, for the 
protection of health, welfare, and citizenship. Such inter- 
ference, an analysis of the various decisions shows, has been 
generally held legitimate by the courts. 

2. Rest Periods 

In spite of the considerable development of maximum 
hour legislation in this country, only slight attention has been 
paid — except for the recent agitation for one day of rest in 
seven and some efforts to exclude women and children from 
night work—to the important question of legal rest periods, 

(z) Daily Rest and Meal-times 

The most common form of legal requirement for daily rest 
periods in private employments is found in the laws regulating 
hours of labor for women. A number of states merely specify 
that from one-half hour to one hoiu* shall be allowed for the 
noon meal. Under such laws, which do not restrict the num- 
ber of hours of continuous employment, women have been 
employed, with no time for rest and meals, for periods so long 
as to be definitely harmful to their health. Several states, 
therefore, make the provision more effective by prescribing 
that the noon rest period shall be given after six or six and 
one-half hours' work. If overtime is worked in the evening, 
a few states require a rest period of twenty or thirty minutes 
after 6 or 7 p.m. Most of the laws apply to all females and 
a few apply both to boys and to giris, but the inclusion of 
adult men workers is very rare. 

In addition to the noon rest period a few employers have 

*See "Justification of True Collective Bargaining," pp. 116-119. 



I 



t 



i 






272 PRINCIPLES OF LABOR LEGISLATION 

voluntarily granted to employees, especially to women a 
fifteen- or twenty-minute rest in the middle of the morning 
and agam in the afternoon; but no legal regulations to this 
effect exist m America. In European countries, however the 
beneficial effects of these shorter breaks in the workday have 
been recognized in legislative enactments. In Belgium, for 
instance, women in fruit-preserving must be aUowed at least 
fifteen minutes' rest in every five-hour work period in addition 
to the noon rest. In the chocolate and confectionery industry 
a second rest period of fifteen minutes in addition to the noon 
rest must be allowed if the working day is between nine and 
ten hours long, and a third rest period of the same length 
must be given if the hours exceed ten. Such rest periods may, 
under the increasing strain and complexity of modem industry,' 
add much to both the physical welfare and the efficiency of 
the worker. 

^ For men workers in America a daily rest period is occa- 
sionally required by laws in the interest of health or public 
safety. Thus a daily rest period as well as the maximum limit 
of daily hours is fixed by law for railroad employees. Train- 
men must be allowed ten hours' rest after sixteen hours' con- 
secutive employment, but if they have been at work for an 
aggregate of sixteen hours with brief intervals between, the 
rest period need be only eight hours. Several states make no 
distinction between consecutive and aggregate employment 
but set a fixed period of eight or ten hours' rest after sixteen 
hours of work, while a few other states require this rest period 
after thirteen, fourteen, or fifteen hours on duty. In addition 
a few states, including Massachusetts, Maryland, and New 
York, have enacted laws requiring that telegraphers, switch- 
men, and others directing the movement of trains be given a 
rest period of twenty-four consecutive hours twice each 
month, without reduction of pay.^ In New York, New Jer- 
sey, Penn sylvania, and Massachusetts, where tunnel and cais- 

or.'^'^w^i-'^-^^''^ l^.'^^^^' however, held unconstitutional by the state 
appellate division, third department, in People r. N. Y. C. & H R R R 

k^^lJLi ^P- ^A""- 79- ^'^'^^' °" *^^ ^°""^ ^ai<i down by the United 
States Supreme Court in Erie R. R. Co. v. New York, 231 U. S 671 71 

Sup. Ct. 756 (1914). that "there can be no valid state legislation covering 

the same field where the federal authority has asserted its right to act '' 



HOURS OF LABOR 



273 



son operations have been scientifically regulated, the hours of 
workers in compressed air must be equally divided by a rest 
period varj^ng in length from one-half hour to five hotu*s, 
according to the degree of air pressure.^ 

(2) Night Work 

Night work legislation applies only to women and minors, 
there being no regulation of the work of adult men in this 
respect. 

The investigations of the International Association for Labor 
Legislation, begun in 1901, showed that serious physical and 
moral dangers surrounded the work of women at night. It was 
clearly demonstrated that recovery from fatigue is obtained 
mainly through rest and sleep, and that sound sleep can 
rarely be secured in the daytime, especially in the noisy and 
crowded homes of many working people in industrial cities. 
The lack of sunlight tends to produce anaemia and tuberculosis 
and to predispose to other ills. Night work brings increased 
liability to eye strain and accident. Serious moral dangers 
also are likely to result from the necessity of traveling the 
streets alone at night, and from the interference with normal 
home life. From an economic point of view, moreover, the 
investigations showed that night work was unprofitable, being 
inferior to day work both in quality and in quantity. Wher- 
ever it had been abolished, in the long run the efficiency both 
of the management and of the workers was raised.^ Further- 
more, it was found that night work laws are a valuable aid 
in enforcing acts fixing the maximum period of emplo3^ment. 
As a result of these investigations, the association called, 
through the Swiss Federal Council, in Berne, in 1906, a con- 
ference on woman's night work. This conference was at- 
tended by representatives of fourteen leading European pow- 
ers,^ and an international convention was drawn up by which 
the variou s countries agreed to provide as soon as possible that 

^ See table, p. 260. 

* See the brief in the case of People v. Charles Schweinler Press, by 
Louis D. Brandeis and Josephine Goldmark, pp. 260-307. 

» Austria, Hungary, Belgium, Denmark, France, Germany, Great 
Britain, Italy, Luxemburg, Portugal, Spain, Sweden, Switzerland, and 
the Netherlinds, -ft 



il 






I' 



tfe 












^74 PRINCIPLES OF LABOR LEGISLATION 

women industrial worker*? nx^^ ^; i,^ 

eleven consecutive hours of rllatSr ''^ ^""^^"^ ^^ ^«^' 
fall between lo p m and c ! T f ^^*'- '^"^^ °^ ^'''^h '""st 
tory countries thf necesLrv iei*? r'*''^"^ ^" °^ ^^e signa- 

prohibition was in force^ jaTuSlT T '"T'^ "^^ ^^« 
other states and deoendPnpiJt ^ ' '^"- ^ number of 
Even in India the St work orj""''"** -'^''"^ ^«^^'^«on. 
bidden between 7 p m and ?,° ."""". '" ^^"=*°"^^ '« ^r- 
between 9 p.m. and'fi a" 'severaf-Jf AT"'"*'"^ '°'''^^' '* 
have enacted legislation far beyond th^ ''^^^'^ ''^"'' 
treaty. France, Belgium aL w ,*^^ P'"ovisions of the 

bidden many kinds ofTnduSwori°b 'r*'"'"' ^^^^ f°^- 
S A.M., and in Holland the nrohibitPH? ^'^T ^ ^-M" ««d 

and 6 A.M. Most of tSse'^S^oS c°ountn?,'''"'T ' '''■ 
tions under oertflin ^^^^u- ^^^" countnes permit excen- 

handling'^iS: rtt^woSr"^ "''^^ ^ '^^'^"'" 
loss, but such exceptSTe as a n,!^"'' ^'^* ^"^«^' 
guarded. The Inte^ation^LaLr clV^'^ "^"'"^""y ^f^' 
Washington in NoveX^ Lio r^fffl" !"^' ^''''^'^ "'^t in 
form the convention forblddW t' '^^'^""^^ xn strengthened 
the war emergencrhfd cLused tl^T" ' "'^''* ^°^k. Where 
usual legal reftrictfons on 2 workTtfT X''"°""' °^ ^^e 
more been demonstrated ' ' "^^ ^'^^'^'^ '^^'^ °"ce 

While the prohibition' of night wort b,r „ 
means universal in America, by ^^"o about T^ '' ^^ "° 
forbade some form of it ' Ja ,u * '^°^^" states 

dangers are coming to be tetterU "J k'"'^ ''^"' **>** '*= 
standards for women°s em^ovmp^f ' ^ V*"" P""''^- The 
Industry Service of theTn^f^ "'""'^ ^^ ^^^ Women in 
were bSed on warl,^: nStSs'^ttrf " "' ^^'°'' "'^^'^ 
ber. X9X8, included prohibTtS tL t^rk ofT'' " J'^"^'"- 
10 P.M. and 6 A M Ma«fl,<l,„o„f+ , ' women between 

in 1890 the XlovTent of «'''•*''' P'°"^«^'f°^bidding 

mechanical estSCSs tir " o" r "a" J^""^, ^"^ 
1907 the law was extend^H VT/ u-j^ ' ^'''^ ^ ^-M-' In 
between 6 p m and 6 am < 1 / '^ "^"^ '" ^^^^^^ «'"« 
~^ii;G;;.tB ; t . '*"'^'^'* regulation found in 

^Tc"''^^^TM^':^a;fu:']i7::'^^^^ Mu„itio„ Worker. 

^ ^Connecticut. Delawirp TnH o« ^^ ^"^ °^ ^omen," iqi6 

' Massachusetts, Laws 1890 c'l 8?"^^ f ?iT' r^^^^' Wisconsin. ' 

^ . • ^03. /^zJ., Laws 1907, C. 267. 



HOURS OF LABOR 



27s 



the United States. Not one of these statutes, however, is 
an inclusive night work prohibition. The Indiana law, for 
example, applies only to factories, ^ while the South Carolina 
law applies only to stores. ^ New York, by five separate 
statutes, covers factories, stores, restaurants, elevators, and 
messenger service,^ while Nebraska covers a wider range of 
employment by including also laundries, hotels, and offices.-* 
There is no statute law in Oregon forbidding night work, but 
the industrial welfare commission, by administrative order, 
has forbidden it in stores, factories, and laundries.^ The 
Kansas commission has taken similar action fot stores and 
factories. '^ 

In some cases, however, the laws have been so worded as 
to prove unenforceable. A Connecticut law of 1913 simply 
forbade the employment of women in certain lines of work 
after ten o'clock in the evening. ' ' 7 Therefore certain manu- 
facturers observed the letter of the law by requiring women to 
stop work at 10 p.m., but calling them to their tasks again 
from midnight till eariy morning. It is reported that this 
practice became general in munition plants during the boom 
which began in 191 5. It was not imtil 19 19 that Connecticut 
passed an effective law specifying the entire period during 
which night work was forbidden.^ 

Another small group of states recognize the strain of em- 
ployment at night for women and seek to discourage it by 
shortening the period which may be so worked. The Mary- 
land statute is typical of this class of legislation. While by 
day women may work up to ten hours, if any part of their 
work falls between 10 p.m. and 6 a.m. the hours of employ- 
ment are limited to eight.^ With these exceptions, which 
are confined to a few states and a few industries, the night 
work of w omen is entirely unregulated in America. 

^ Indiana, Annotated Statutes 1908, Sec. 8021. 
South CaroHna, Code 1912, Sec. 430. 

* Nebraska Statutes 1907, Sec. 6940 (as amended by Laws 1913, C. 151). 
' Industrial Welfare Commission of Oregon, Orders Nos. 3 and s 
Industrial Welfare Commission of Kansas, Orders of March il and 
October 30, 191 8. ^ ^ 

.^^"t"'^^^"* Laws 1913, C. 179. 8 Connecticut, Laws 1919, C. 19-5. 
» Maryland, Public General Laws 1911, Sec. 14. ^^ 



ll 



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1*1 I 



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^76 PRINCIPLES OF LABOR LEGISLATION 

attitude of certain of K,"4^°""/^d for by the dolbtS 
after the international ag^eeme,5^;o ^n ^Pf^'.^'ght months 
New York State Court of ApSdl^.l ^^ T^* ^°*' ^^e 
unconstitutional.' The dSrine nf^ T** ^ P^^Wbition 
tract between employer and er^^, ^ ^"*''^ ^^^'^°"' of con- 
and to women was emS.eTS?.^^P'^'"^ ^"^« ^ «en 
trace any comiection teSn thTll T.^;! ^^ ""^"« *<> 
health. No account wasTken of \ '^ ^^^ Promotion of 
between men and women sLcTtht i" "''"*. '"^ differences 
naturally been reluctant to pas! nthf?",'"^'^^*"'^ ^ave 
as the dangers of night work for wo^.'T^ '^^'- «°^ever. 
inown. judicial opinion^eem. L k^ ^''°"'^ ™°'e widety 
the constitutionality of prTb t^l^ "^^1.^ ^^P^^' ^ 
deis and Miss Goldmark hWn„^ "^ ''"^^ by Mr. Bran- 
-nted in defense of Sei^K^ ,''' '^^*^' "^ P- 
York m 1913. The highest statfcl^/.f'^ ^^"^ ^V ^ew 
unammously reversed its foS^er T ■ ^^^ ^°"^ °^ appeals, 
n-zance of the facts presenT^tn ,>'''''°"' ^"'^' taking cog: 
dustrial conditions, upheld he ll '" ""^^"'^ '° "^"dem if- 
to the health of women both fortT "" ^ "'"''"^'^ Protection 
-^ke of posterity.^ At ihe e„i of ^oTnT '"^'^^ ""^ '°' ^he 
been passed on by the VnL7t I ^o^ ""^ '^^« had not yet 
The injurious eS of nlh^ f ^"^'"^'"^ ^ourt. ^ * 

on children. who2^ en^' T^^ ^^« ^^f "^^^^ 

fully developed, than thef are o?~°' ""T"^"' ^« "°' 
of the annual Intemation^ Lab^r r T^^'"' ^^^ ^^ 
recommended to its member, thf Conferences, in 19x0. 

dmgthe«nployment ofThfe^n ' r'*T"' °^ ^^*« ^^^bil: 
a Imnted number of except orforttol'l^" "' "'^''*' "^'^ 
eighteen. In the United Stetes ch.^H "^^^^ '''^'^" and 
better protected with ret^arrl tf ^^.^"^"^"^en are, fortunately 
being no constituSa^lStv in th^^ *''"" "°-«"- *hife 
proposed by the Intematio^^ UboJ PnT" ^^^ ^^^"'^^d 
been reached, however Ablff^T Conference ha^ hardly 

the night work of ch Idren ui^t^'tl*"*'" ^""^ P^°hibited 
-~-~- "^" "ntier sixteen, generally between 

'People.. Williams., 80 N Y ,» « m ^ 

^"cipter lA, Administration." *'^^' ^ ^' ^' ^39 (1915). 



If 



HOURS OF LABOR 277 

7 P.M. and 6 a.m., and in addition, in Washington, where there 
were no statutory restrictions except in bake-houses, the in- 
dustrial welfare commission by administrative orders forbade 
the night work of minors under eighteen in laundries and 
telephone and telegraph offices. The greatest abuses in con- 
nection with the night work of children have been found in 
textile mills and glass works, and on account of the strong 
opposition of the manufacturers the states where conditions 
were worst have frequently been the last to pass the necessary 
legislation. However, by 1920 all the northern textile states 
and important glass-manufacturing states forbade the work 
of children at night. 

(j) Saturday and Legal Holidays 

While more than a dozen states have made Saturday after- 
noon a legal holiday, few, if any, have made effective pro- 
vision for the enforcement of this or other laws fixing legal 
holidays. The extension of the Saturday half-holiday in 
pnvate employment during recent years is often due to vol- 
untary action by employers. The short workday on Satur- 
day is more often found in summer than in winter, and more 
often among clerical and mercantile ^ than among industrial 
workers. Occasionally strong labor organizations, such as 
those in some of the building and garment trades, have secured 
the forty-four-hour week, which means the Saturday half- 
hohday. The United States Bureau of Labor Statistics has 
reports of 132,934 workers who gained the forty-four-hour 
week between 1915 and the end of 1918, the great majority 
of whom obtained it in the latter year. 

But probably women's hour laws have been one of the 
strongest single influences in securing, though indirectly, a 
shorter workday on Saturday to certain workers. During the 
past decade many efforts to improve standards took the form 
of cutting down the sixty-hour week, though still retaining 
the ten-h our day; this in actual operation often meant a 

Sati^dlv^SfZ^L^^^i ^,^^r ^P^ially active in securing the 
mn«S^^?^», 1 ^°^';S^y ^?f salesgirls. In 1914 it for the first time induced 

^nd August."^^' ^'" ^^'^ ''°'^ '° ^^°^^ "" ^^y ^^^^^y during Ju^ 



n. , 



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*■.' 



2 78 PRINCIPLES OP LABOR LEGISLATION 

Saturday half-holiday. Ten states are still found which allow 
ten or ten and a half hours of work daily, but set a weekly 
limit of fifty-four to fifty-eight hours.^ while Massachusetts, 
North Dakota, and Ohio have adopted the same principle 
with the higher standards of an eight-and-a-half or nine-hour 
day and a week of forty-eight or fifty hours. Several laws 
also permit an increase in daily hours to secure a shorter work- 
day one day in the week. 

In public employment, as in private, the Saturday half- 
holiday has become the established practice for clerical em- 
ployees. In addition, a few laws are found extending it to 
laborers as well. For instance, Massachusetts in 1914 by 
popular vote provided a Saturday half-holiday without loss of 
pay for all laborers, workmen, and mechanics employed per- 
manently by the state or by any of its boards or commissions. 
In continental Europe the working week of five and a half 
days is generally known as "the English week" because it 
IS more widely enforced by law in England than in any other 
country. Thus in Great Britain laws are found forbidding 
the employment of women and young persons on Saturday 
after i p.m. in textile mills, and for more than eight hours in 
non-textile factories and workshops. So important is the 
Saturday half-holiday considered in Europe that it was pro- 
posed as a subject for international treaty at the latest meet- 
ing of the International Association for Labor Legislation in 
1912. 

{4) One Day of Rest in Seven 

It has been pointed out 2 that under modem industrial 
conditions many thousands of wage-earners are obliged to 
work seven days a week, a practice which deprives them of 
proper leisure and tends to break down their health. Remedial 
legislation in the United States has been of two kinds. The 
type of law found in nearly all the states is a descendant of 
the old Puritan *'blue laws" and attempts to forbid all Sun- 

1 Connecticut, Delaware^ Michigan, Minnesota (mercantile), New 
Hampshire, Pennsylvania, Rhode Island, Vermont, Wisconsin, Wyoming, 
bee Women s Hours, p. 237. ^ 

' See p. 222. 



■««■ 



HOURS OP LABOR 279 

day work, primarily from religious motives. Such laws, how- 
ever, drafted before the rise of modem industry, generally 
fail to protect either the worker or the Sabbath. Many of 
them are meaningless because filled with exceptions; others 
remain dead letters on the statute books; all fail to provide 
proper means of enforcement. A few enforceable laws have 
been passed prohibiting Sunday employment in a single occu- 
pation, generally that of bakers or barbers, but have generally 
failed in their purpose because the courts have tended to de- 
clare them unconstitutional as making an arbitrary classifica- 
tion of industries, which violates the equal protection clause 
of the fourteenth amendment to the federal constitution. 1 
But It is hardly practicable or desirable, at the present day 
to realize the aim of the old-time Sunday law and stop all Sun- 
day work. Public necessity demands the continuous operation 
of such services as telephone and telegraph lines, heat, light, 
and power plants, steam and electric railways, and hotels and 
restaurants. Another large group of industries, important 
among which are iron and steel works, cement factories, paper 
and pulp, flour and grist mills, usually operate continuously 
on account of technical requirements or sometimes simply for 
economy. To remedy this situation an entirely new form of 
law has been devised which recognizes that much seven-day 
work IS a necessity and that the objectionable feature is the 
seven-day worker. This type of law, therefore, simply re- 
quires that all employees be given a weekly day of rest, those 
employed on Sunday being given a free day at some other 
time m the week. Since such a law generally necessitates an 
addition of one-sixth to the working force, it tends to elimi- 
nate all unnecessary seven-day labor at the same time that 
it secures to every workman a weekly rest day. 

This modem legislative movement began in Switzeriand 
where a law was passed in 1890 requiring each railway em- 
ployee to be given, without loss of pay, fifty-two weekly rest 
days each year, seventeen of them to fall on Sunday. Be- 
ginning at about 1905 enforceable rest-day measures were 



Ilni?^ h^^^^\^' ^H\' u^^^°^ ^^^'" Declared Unconstitutional," 
United States Bureau of Labor, BulleUn No. gi, November, 1910, pp. 



^^ 



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1* 



280 PRINCIPLES OF LABOR LEGISLATION 

enacted in almost all the leading European countries « These 
aws generally name Sunday as the day of res but oeS 
the operation of continuous industries L thlt day prSd 
every employee gets some other day in the week free it 
with many other classes of Europear. labor le^^at on onT^ 
he general principle is laid doX in Se li^and sp2 

la™"""!!? ''"^ ''T, ^'^ ^^^ *^^' government had by 

darof^r'est' n sev^ rl' r^^'lT' ''''' ^""^'P'^ ^' -^ 

office enSoveo J T». r ,f^'^ '^^ ^PP"^^ °n'y t° Po^t- 
omce empjoytcs. The California and Connecticut stab.tP= 

are nullified by exempting "any case of emergent" ^^ d ,n 

otXVtts'^^Tet^'h-^" ^^^^'^^"^ '^^-P" ^ ^^ 
01 occupations 1 he Michigan act applies only to interarh-,., 

motomien and conductors, but is iLresting L thrfii^t 

TSemainThe'M''^'''r °' '""'^ ''^ ''^ tfanTporttioS 
incre remain the Massachusetts and New York acts of m, , 6 

and the Wisconsin act of 19x9/ which are sim far S cha acter 

canH?. . ll u ^- ^^""^ ^^^^ ^PP'^ ^° factories and mer- 
cantile establishments generally, but exclude certain occZ- 
tions, such as janitors, watchmen, superintendents foremTn ,n 
charge employees caring for live animals, mainta^^ njfir s 
or making repairs to boilers or machinery, and empfovees 
working not more than three hours on a seventh day SE 

longTt of su h""- '"•^'''*'°" Massachusetts^excludeH 
long hst of such occupations as those connected with news- 
paper work, restaurants, drug stores, livery stables ^rgarars 
th^-le_or distribution of gas, electricity, or ^°k,T5 

nia\nd'He?ieS Dcnma^k'fc* '^^ '"'''"'? ^-'"-. »- 
Roumania, Spain. Sw^zeriand^Brili^hTT' ^""i^"y; ^t^'X. Portugal, 
Argentina,' &ile and pi™''' ^"^ ^^et^' ?a^<^?;,^Pl?f ^ood H Jpe 
Labor, BWtowA^o.^p, December ^,."R^n t'"*- .^'^Partmcnt of 
John A. Fitch. See a so BaSwl; 3,i' ,^<=s'-l^?y Legislation Abroad," 

' These orders a?d Iter^ m»v 1 / ^"''r""'''"^, Labor Office.) ' 
the International UborO^ ^ ^^ ^""""^ '" '*^'^'' '" *>>« BulUlins of 

'United States Laws 1911-19,2, c. 389, Sec s 

' wfs^^nstTa^^^^^^ N- York, Laws .913. C. 740. 



HOURS OF LABOR 



281 



emergency which could not reasonably have been expected. 
Wisconsin excludes all workers in milk and cheese plants and 
in flour mills. New York furthermore provides that if there 
are practical difficulties or unnecessary hardships in carrying 
out the law, the industrial commission may make variations 
"if the spirit of the act be observed and substantial justice 
done," and if the variations apply to all cases in which condi- 
tions are substantially the same.* An earlier amendment 
giving the commissioner of labor power to exempt necessarily 
continuous processes in which no one was employed for more 
than eight hours a day was declared unconstitutional by the 
court of appeals on the ground that it constituted a delegation 
of legislative power.2 Under the clause just mentioned, 
however, which authorizes the industrial commission to grant 
variations from the law in case of practical difficulty or un- 
necessary hardship, provided substantial justice be done, 
the commission has from time to time, upon affirmative vote 
of the workers concerned, given exemption to necessarily con- 
tinuous industries or processes where the eight-hour shift was 
in practice. As an aid to enforcement employers are usually 
required to post a schedule containing a list of employees who 
are to work on Sunday and designating the day of rest given them. 
Investigations carried on by the American Association for 
Labor Legislation ^ in Massachusetts and New York after 
the law had been in force a year showed that its provisions 
were being generally observed and that many employees who 
had previously been obliged to work seven days a week were 
obtaining a weekly rest day without undue hardship to in- 
dustry. 

Women and children are also sometimes protected from 
seven-day labor through the provisions of those maximum 
hour laws which limit work to six days a week; other stat- 
utes seek to insure a weekly rest day by fixing weekly hours 
at six times daily hours or less. A few women's hour laws, 
however, leave the way open for seven-day labor by setting 
a daily but not a weekly limit, and one state, Arizona,^ invites 

* New York, Laws 191 5, C. 648. 

2 People V. Klinck Packing Co., 214 N. Y. 121, 108 N. E. 278 (1915). 
' American Labor Legislation Review, December, 191 4, pp. 615-626. 

* Arizona, Penal Code 19 13, Sec. 717. 



, 



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I 



282 PRINCIPLES OF LABOR LEGISLATION 

it by making: the weekly working period seven times the per- 
mitted daily hours. 

^ It has been pointed out that Sunday laws applying to 
single occupations have sometimes been set aside as class 
legislation. General Sunday laws, however, have almost 
universally been upheld by the higher courts. Two distinct 
lines of reasoning have been followed. In the first half of 
the nineteenth century, beginning with a New York case in 
i8ii,i the constitutionality of the laws was seldom directly 
involved, but was assiuned on religious grounds in connec- 
tion with the settlement of such questions as the scope of 
their application, the validity of contracts made on Sunday, 
the definition of "works of necessity or charity," or the classi- 
fication of employments. In 1844 in North Carolina a case 
first came up which was sustained on the grounds of the police 
power of the state. For the next twenty years both lines of 
reasoning found their way into court decisions, but since 
1866 the state courts in sustaining these laws have relied al- 
most entirely upon the police power, and all acts passed upon 
by the federal Supreme Court have been upheld on this same 
ground.^ 

Representative of the reasoning by which Sunday laws 
have been held a legitimate exercise of the police power is 
the opinion of the state supreme court in Hennington v. 
Georgia,^ later quoted by the United States Supreme Court: 

"There can be no well-founded doubt of its being a police 
regulation, ... for the frequent and total suspension of the 
toils, cares, and strain of mind or muscle incident to pursuing 
an occupation or common employment is beneficial to every 
individual, and incidentally to the community at large, the 
general public. Leisure is no less essential than labor to 
the well-being of man. Short intervals of leisure at stated 
periods reduce wear and tear, promote health, favor cleanli- 
ness, encourage social intercourse, afford opportunity for 

» People V. Ruggles, 8 Johnson (N. Y.) 289, 5 Am. Dec. 335 (181 1). 

2 As late as 1 91 5 a general Sunday law was attacked in Oregon as class 
legislation and as a violation of the fourteenth amendment, but was up- 
held by the state supreme court (States. Nicholls,77 Ore. 415,151 Pac. 473). 

3 Hennington v. State, 90 Ga. 396, 17 S. E. 1009 (1892); Hennington v, 
Georgia, 163 U. S. 299, 16 Sup. Ct. io86 (1896). 



HOURS OF LABOR 



283 



introspection and retrospection, and tend in a high degree 
to expand the thoughts and sympathies of people, enlarge 
their information, and elevate their morals. 

**If a law which, in essential respects, betters for all the 
people the conditions, sanitary, social, and individual, under 
which their daily life is carried on and which contributes to 
insure for each, even against his own will, his minimimi 
allowance of leisure, cannot be rightfully classed as a police 
regulation, it would be difficult to imagine any law that 
could." 

In only one state has a test case on one-day-rest-in-seven 
laws reached a higher court. A priori it would seem that 
these laws could be sustained as police power regulations as 
the Sunday laws have been, and in the main such a position 
was taken by the New York State Court of Appeals on Febru- 
ary 5, 1915. The court said:^ "Can we say that the pro- 
vision for a full day of rest in seven for such employees is so 
extravagant and unreasonable, so disconnected with the 
probable promotion of health and welfare, that its enact- 
ment is beyond the jurisdiction of the legislature ? . . . We have 
no power of decision of the question whether it is the wisest 
and best way to offset these conditions and to give to emplo3''ees 
the protection which they need, even if we had any doubt on 
that subject. Our only inquiry must be whether the pro- 
vision on its face seems reasonable, fair, and appropriate, and 
whether it can fairly be believed that its natural consequences 
will be in the direction of the betterment of public health 
and welfare, and therefore that it is one which the state for 
its protection and advantage may enact and enforce." The 
classifications made by the act have likewise been upheld, as 
meeting the actual conditions of modem industrial life. Its 
limitation to employees of factories and mercantile establish- 
ments was reasonable because "We know as a matter of 
common observation that such labor is generally indoors and 
imposes that greater burden on health which comes from 
confinement many times accompanied by crowded conditions 
and impure air." The exemption of dairies, creameries, and 
similar plants employing not more than seven workers was 



* People V. Klinck Packing Co., 214 N. Y. 121, 108 N. E. 278 (1915). 



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284 PRINCIPLES OF LABOR LEGISLATION 

also reasonable, because of the perishable nature of the product 
the heavier burden of the necessary increase in the force of a 
small establishment, and because of the closer personal relation 
between anp oyer and employee and lessened strain in such 
small establishments. The power given to the commissioner 
ot labor to exempt continuous industries in which daily hours 
were not more than eight, was held to be an unconstitutional 
delegation of legislative power, but similai- action by the in- 
dustrial commission under a later amendment authorizing 
vanations in certam cases has not been questioned. Thus 
the attitude of the courts is apparently favorable to the ex- 
tension of laws securing industrial workers a weekly day of 

(5) Annual Vacations 

The average salaned worker would consider himself ill-used 
It he failed to receive an annual paid vacation of two weeks 
or more. But ordinarily no such provision is made for the 
wage-eamer.i In this respect employees of state and federal 
governments fare better than workers in private employment. 
About half a dozen states have laws providing annual vaca- 
tions /or several classes of employees. Representative of 
these IS the California statute, which allows an annual vaca- 
tion of fifteen days with pay to all regular employees of state 
hospitels state commissions and boards, and the state print- 
ing-office. The federal government likewise provides annual 
paid leaves of absence for several classes of employees, in- 
eluding the employees of the Bureau of Engraving and Print- 
ing and the Government Printing Office, workers in navy- 
yards, gun factories and arsenals, and railway postal clerks 
In Massachusetts in 1914 an act providing a fortnight's paid 
vacation for laborers employed by cities and towns was sub- 
mitted to popular vote and accepted by over half of the cities 
and towns of the commonwealth. Another method some- 
times use d to secure vacations to city employees is that of 

ae^elm^nT wi?h^Vh^^^ Milk Wagon Drivers' Union of Chicago signed an 
!Efw ^ ^ ^^^y^ employers which included a provision for two 

* California, Laws 1909, C. 250, Sec. i. 



HOURS OF LABOR 



285 



inserting such provisions in city charters. For example, the 
New York City charter gives executive heads at their dis- 
cretion power to grant employees annual vacations of not 
less than one week, but per diem employees may not be given 
more than two weeks. 

Laws requiring annual vacations have in this country cov- 
ered only public employment, but in Europe they have some- 
times been extended to private industry as well. Thus in the 
canton of Berne, Switzerland, every woman who has been 
employed on time rates in the same business for more than 
one year must be given six consecutive holidays with pay; 
after the second year's work eight holidays; after the third 
year ten days; and after the fourth year twelve days. An- 
other method of providing vacations sometimes used abroad 
is the insertion of labor clauses in public-service franchises. 
For instance, the subway franchise in Paris requires that all 
employees be given ten days' vacation annually with pay. 

The foregoing discussion indicates that legal regulation of 
the working hours and of the rest periods for the different 
classes of employees in America has tended toward uniform 
provisions, the same limitations usually being applied to all 
industries covered by the law. In European countries, on 
the other hand, in addition to broad maximum and minimum 
regulations, frequent use is made of the method of determin- 
ing the length of the work and rest periods in accordance with 
the special hazards of each industry or occupation. Scientific 
adjustment of hours of labor requires thorough and often con- 
tinued investigations of actual conditions, and should com- 
bine the practical knowledge of workers and employers with 
the technical knowledge of experts. In many occupations 
dusts and gases, poisons, or extreme temperatures, make it 
safe to work consecutively for only short periods.^ The pres- 
ence in America of hazardous industries fraught with danger 
to the life and health of thousands of workers employed for 
long hours and frequently seven days a week, but as yet un- 
regulated either by trade organizations or by state control, 

* The strike in the oil plants of Bayonne, N. J,, for instance, during 
the summer of 191 5, brought to public knowledge the work of the still- 
cleaners who must toil in a temperature of 200** F. cleaning the huge vats 
in which oil is refined. 



'H. 



I t 



286 PRINCIPLES OF LABOR LEGISLATION 

indicates the need for a system whereby permanent bodies will 
be authorized to investigate scientifically such conditions of 
employment and fix varying hours of labor on a basis which 
will adequately protect the health and welfare of the em- 
ployees and the state. As already noted, some of the leading 
states of the country have created industrial boards or com- 
missions with authority to make special investigations and to 
regulate hours in the various industries. Moreover, this 
method of meeting the problem has been held constitutional 
by the supreme court of Wisconsin on the ground that "The 
authority thus conferred invests the commission with no 
arbitrary and uncontrolled discretion, but directs them to 
ascertain the facts and to apply the rules of law thereto under 
the prescribed terms and conditions. Such action is not 
legislative in character, but is the performance of an executive 
and ministerial duty within the regulations provided for m 
the act." ^ In these two facts lies some indication of the 
direction which future progress may be expected to take.^ 

1 State V. Lange Canning Co., 164 Wif; 228, 160 N. W. 57 (J9i6), 
quoting State ex rel. Buell v. Frear, 146 Wis. 305, 131 N. W. 832 (1911). 
«Sec Chapter IX, "Administration." 



CHAPTER VI 
UNEMPLOYMENT 

The Secretary of Labor estimated in January, 19 19, that 
1,000,000 American wage-earners were unemployed. Four 
years before, in March and April, 1915, a careful canvass 
of about 400,000 families in fifteen American cities showed 
11.5 per cent, of the wage-earners unemployed and an addi- 
tional 16.6 per cent, working only part time. On the basis of 
a similar investigation in New York City earlier in the year 
it was calculated that the total army of unemployed wage- 
earners in that city alone at the time numbered about 442,000.* 
The United States Census for 1900 showed that 6,468,964 
working people, or neariy 25 per cent, of all engaged in gainful 
occupations, had been unemployed some time during the year. 
Of these, 3,177,753 lost from one to three months' work each; 
736,286 lost from seven to twelve months each.^ A student 
of the problem finds that from 1,000,000 to 6,000,000 workers, 
exclusive of farm laborers, were idle in the United States at 
all times between 1902 and 1917.^ 

The employee's loss from this irregularity of work is two- 
fold. Besides his enormous immediate loss in wages and 
the resulting distress, there is the equally serious loss in the 
weakening of moral fiber which comes with uncertainty, habits 
of irregular work, and occasional lapses into destitution. Un- 
employment is a culture bed for pauperism and all its accom- 
panying evils. As Lescohier has well stated, irregular em- 
ployment "undermines the physique; deadens the mind; 
weakens the ambition ; destroys the capacity for continuous, 
sustained endeavor; induces a liking for idleness and self- 
indulgence; saps self-respect and the sense of responsibility; 

^ United States Bureau of Labor Statistics, Bulletin No. 172, 1915, p. 7. 

2 Similar data were collected by the government in loio, but are still 
unpublished. 

' Homell Hart, Fluctuations in Unemployment in Cities of the United- 
States, igo2 to igiy, Helen S. Trounstine Foundation Studies, Vol. I, 
^o. 2, 1918, pp. 51-52. 




288 PRINCIPLES OP LABOR LEGISLATION 



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impairs technical skill; weakens nerve and will power; creates 
a tendency to blame others for failures; saps courage; pre- 
vents thrift and hope of family advancement; destroys a 
workman's feeling that he is taking good care of his family; 
sends him to work worried and underfed; plunges him in debt." * 

Moreover, in addition to the losses by employees is the 
direct financial loss to employers through the expense of 
** hiring and firing." A number of employment managers 
estimated the cost of hiring and "breaking in " a new employee 
at from $50 to $200; in only one case was the estimate as 
low as $30. A machine-tool builder to whom the matter 
had been suggested declared after a careful study of his plant 
that the hiring of 1,000 new persons in one year, while the 
permanent additions to his force were fewer than fifty, had 
reduced his profits by at least $150,000, or about $150 for each 
new worker hired.^ When among a group of 105 plants with 
226,038 employees, 225,942 new employees are hired in the 
course of a year, 30 to 40 per cent, of the establishments hiring 
from two to six times their average labor force, the magnitude 
of the resulting waste becomes apparent. 

Even this general statement of the wastes of unemploy- 
ment indicates the imperative need of preventive measures. 
Hence we are asking with increasing insistence, is unemploy- 
ment a necessary evil? If not, to what extent is legislation 
a solution? 

In Chapter I it was suggested that unemployment may be 
defined as the failure to make a labor contract. This failure 
may be traced to one of three causes: (i) cessation of work , 
arising from trade disputes; (2) unemployability, or disability, \ 
owing to sickness, old age, or other personal conditions; and 
(3) inability of men who are willing and able to work to find i 
employment. 

The present discussion relates only to the third part of 
the whole problem of idleness. Legislation intended to mini- 
mize idleness due to labor disputes is discussed in Chapter 
III. The problems of unemployability and unemployment 
are by no means identical, but are related to the extent that 

* Don D. Lescohier, The Labor Market, 1919, p. 107. 
'Magnus W. Alexander, "Hiring and Firing: The Economic Waste 
and How to Avoid It," American Industries , August, 191 5, p. 19. 



mji. ^. 



UNEMPLOYMENT 



289 



much chronic unwillingness to work has resulted from the 
demoralizing influence of unemployment, and therefore a 
reduction of unemployment may decrease the additions to 
the ranks of the unemployable. How to provide satisfactory 
means of caring for the shiftless and the criminal is primarily 
a problem of charity and correction, but the prevention of 
unemployment is a problem of industrial organization. In 
this chapter the purpose is to describe the more direct legis- 
lative remedies for unemployment due to the inability of 
normal workers to obtain positions. These remedies may 
deal either with (i) the regulation of private employment 
offices, (2) the establishment and operation of pubHc employ- 
ment offices, (3) systematic distribution of public work, or 
(4) the regularization of industry. A fifth important legisla- h 
tive remedy, unemployment insurance, will be discussed in 
the chapter on "Social Insurance." 

A study of the comparative possibilities of the various pro- 
posed or attempted remedies for unemployment would be 
much facilitated by statistics indicating the total amount of 
involuntary idleness and what proportion is due to each one 
of the several factors, such as cyclical and seasonal fluctuations, 
unnecessarily frequent changes in the personnel of the work- 
ing force and other preventable irregularity in employment, 
and, lastly, to the lack of a centralized market for labor. But 
accurate and comprehensive figures of this nature are not 
available in the United States. The existence of unemploy- 
ment to a significant degree is undoubted, but unfortunately 
it is impossible at the present time to make more than a rough 
guess as to the relative proportion of unemployment due to 
each of the several causes mentioned. 

In New York and Massachusetts, however, the state labor 
departments have for certain periods collected fairly reliable 
statistics in regard to unemplo^^ment among organized workers. 
The mean percentage of idleness in New York among the 
members of "representative unions" ^ at the end of each 
month from 1904 to June, 191 5, due to causes other than 

'In 1 91 5 these representative trade unions numbered 232 and included 
approximately 25 per cent, of the total trade union membership of the 
state. The collection of the figures was discontinued in 191 7, and they 
have not been published in the above form since June, 191 5. 



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290 PRINCIPLES OF LABOR LEGISLATION 

labor disputes or disability, ranged from 3.2 to 38.4 per cent/ 
m all but the year 1906 the percentage was over 12. In the 
same period the unemployment resulting from other causes 
was comparatively small, ranging from less than 1-20 of i 
per cent, to 6.4 per cent, for labor disputes and from .8 to i 8 
per cent, for disability. The labor department states that 
aside from industrial maladjustments, "other contributing 
causes for idleness, such as labor disputes, sickness, and 
accidents, are inconsequential." 2 Of the 11.2 per cent of 
members of local trade unions reported as unemployed in 
Massachusetts on March 31. 1919, over 90 per cent, were 
unemployed because of "lack of work" rather than because 
ot labor disputes or disability .^ 

It should also be noted that there is a wide seasonal varia- 
tion m the demand for labor. Statistics collected in New York 
as to idleness of the members of labor organizations indicate 
that the mean percentage of idleness during the period 1897 to 
1913 was m all but three years, over 5 per cent, at the end 
of September, and over 1 5 per cent.— that is, three times as lar^e 
—at the end of March. The federal Census of Manufactures for 
1905 showed from the manufacturers' records that in one month 
7,017,138 wage-earners were employed, while in another month 
there were only 4,599,091, leaving a difference of 2,418,047 
Ihat IS to say, nearly two and a half million fewer workers 
w^e employed at one period of the year than at another 

In addition to the irregularity of employment due to cyclical 
fluctuations in the demand for labor, or industrial "crises " 
and that due to seasonal variations, a third important type of 
Idleness results from the casual or short-time nature of many 
occupations. The New York commission which studied un- 
employment reported in 191 1 that two out of every five 
wage-earners are obliged to seek new places one or more 
times eve ry year.^ In brief, the best available evidence in- 

' New York Department of Labor, Bullelin No. 7?, 191c "Idleness of 
Organized Wage-Eamers in the First Half of 191 s " d 2 ^^^^^ss ot 
2 New York Industrial Commission, Special BulCetin No. 85, 1017 
Course of Employment m New York State from 1904 to 1916 ''04^' 
Massachusetts Bureau of Statistics, Labor Division; For ty. sixth oVar^ 
terly Report on Unemployment in Massachusetts,' i gig pis 
Tk-f"^ York Commission on Employers' Liability 'and Other Matters 
Third Report: Unemployment and Lack of Farm Labor, 191 1, p 38 ' 



UNEMPLOYMENT 



291 



dicates that unemployment is chronic and the amount never 
insignificant, even when industrial conditions are at their 
best. 

I. Regulation of Private Employment Offices 

To the extent that there is somewhere a suitable "manless 
job'' for each "jobless man," the solution of unemployment 
is simply the proper distribution of the labor supply. Per- 
haps the commonest method of seeking to bring about this 
distribution is by unsystematic individual search. A man 
not recommended for a position by a relative or friend often 
follows the easiest course, that which involves the least im- 
mediate expenditure of money and thought. He starts from 
home and drops in at every sign of "Help wanted." 

"Help wanted," scrawled on a piece of cardboard, is the 
symbol of inefficiency in the organization of the labor market. 
The haphazard practice of tramping the streets in search of 
work is no method at all. It assures success neither to the 
idle worker in his search for work, nor to the employer in his 
search for labor. On the contrary, by its very lack of system, 
it needlessly swells the tide of unemployment, and through the 
foot-weary, discouraging tramping which it necessitates often 
leads to vagrancy and to crime. 

Another common method of connecting employer and em- 
ployee is through the meditim of advertising. Every large 
newspaper in the country carries yearly hundreds of columns 
of "Help wanted" and "Situations wanted," at a cost to 
employers and employees estimated at about $5 for every 
worker. If the money spent brought commensurate results, 
there would be less ground for complaint. But at present 
an employer advertises for help in several papers because not 
all the workers read the same paper. The employee lists 
the positions advertised and then starts on the day's tramp. 
At one gate fifty or a hundred men may be waiting for a single 
job, while in other places a hundred employers may be wait- 
ing each for a single employee. Unnecessary duplication of 
work and expense by both parties is evident. In addition 
to the expense, newspaper advertising also possesses inherent 
possibilities of fraud. It is diffiailt for the newspaper, even 









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292 PRINCIPLES OF LABOR LEGISLATION 

Hr^l^^^^'i*"^"'' ^"^ ^"^""^ misrepresentations, and the vie- 
timized employee very rarely seeks legal redress 

coi^eSlt'" ""^ ' vl T^. ^^ ^^^^ systematic means of 
connectmg the nian with the job, private employment offices 
of various sorts have long been established. Pri^te burS 
Tnd I' Ti ''''Ju"" .^'" -^^ducted by various philanthropic 

but ,t7;"P^;!^ v^'"P^' ^^T^^^ ^^ ^^1 ^iti^ of'^importance, 
but their activities consist largely in finding casual employ: 

ment for near unemployables. In addition, manv trade 
unions and employers' associations maintain employment 
bureaus for workers in special occupations. Some of them 
are very efficiently organized and conducted. Notable ex- 
amples are the printers' union "day rooms," and the chain of 
employment bureaus conducted by the National Metal 
Irades Association in fourteen principal cities of the United 

nn^W • . .if"f "f ''f ""^^^^^ "^ ^^^^' ^^^'^ registrations 
number into the hundreds of thousands, and it is claimed by 

,wr? ^^T that they are not strike-breaking or blacklisting 
institutions ^ Nevertheless, the usefulness of employment 
bureaus under the partisan control of either trade unions or 
employers is limited by their potential or actual use as weapons 
in a trade dispute. They lack the neutrality essential to the 
satisfactory organization of the labor market. 

(i) Abuses 0/ Private Agencies 

Private employment agents, doing business for profit, have 
sprung up in all large centers. In 1912 there were 240 of 
them licensed and m operation in Chicago; in New York 
they number about 600; and in all the states, probably about 
5.000. Aside from a few specialized agencies, they handle 
chiefly unskilled, domestic, and theatrical labor The best 
organized and most powerful are said to be those which sup- 
ply the railroads with common labor. 

Many abuses are charged against the commercial agencies 
particulariy misrepresentation of wages and conditions of 
work, exa ction of extortionate fees, sending applicants to 

• ' ^^A^' ^^^1 secretary of the Associated Employers of IndianaooH.; 
Officii 1^14 '^°'' '^' ^'"'^'^ Association Sf Sc EmplSS 



UNEMPLOYMENT 293 

immoral resorts, and "splitting fees" with foremen and thus 
inducing frequent discharges in order to get fees from men 
employed to fill the vacancies. In the testimony in the hear- 
ing on the petition for an injunction against the Washington 
referendum practically abolishing commercial agencies, it was 
stated that some of the private offices were so conducted as 
to "have three men for one job; one upon the job, one going 
to the job, and one coming from the job, and receiving com- 
pensation from all." There are frequent instances, also, 
where the commercial agencies accept fees and send the work- 
men to distant points where there is no demand for laborers. 
For example, in Kansas, the director of employment bureaus 
states that during the harvest rush it became known that 
"private employment agents were imposing upon men who 
came to the state in search of work in the harvest fields, exact- 
ing a fee from men seeking employment and then directing 
them to parties who had not authorized the employment agent 
to engage hands." ^ In the year ending May i, 1913, the 
commissioner of licenses of the city of New York reported 
the investigation of 1,932 complaints against registered em- 
ployment agents, resulting in nine convictions, the refunding 
of more than $3,000 to victimized applicants, and the revoca- 
tion of thirteen licenses.^ Among the charges for which li- 
censes were revoked were fraudulent conduct, misrepresenta- 
tion, failure to refund fees, and sending giris to questionable 
places. 

(2) Restrictive Legislation 

In the majority of states the abuses of the profit-making 
agencies have brought about restrictive legislation designed 
to prevent fraud and extortion and to insure moral surround- 
ings. Under this legislation no one may carry on an employ- 
ment office for profit without depositing a bond with the 
state department of labor or the city authorities and securing 
a license. The amount of the bond varies from $100 to $5,000, 
and the annual license fee from $10 to $100, often both being 
graded ac cording to the size of the city or the sort of labor 

^Twenty-ninth Annual Report of the Kansas Department of Labor and 
Industry, 1913, p. 220. 

2 Report of the Commissioner of Licenses, New York City, 1913, p. 19. 



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PRINCIPLES OF LABOR LEGISLATION 



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handled. Licenses are issued only if the Dremi<?PQ om f a 

location of a^^JeTin t^^oL^ Wiatfv^S?? '""^ 
houses or restaurants is also frequent" prSitSJSo" 
rado extends the prohibition to gambUng-nlacLr' fn ; 

states the sending of minors or women foteToVal ™t 
forbidden. In many jurisdictions the law fe^Tmf^ 
charge, usually either a certain per^nt of 7^?fi maxunum 
wages or a fixed amount OtherS^t?^!; ^* raontVs 

a record of all applicants registered is requir^ b„t rf ^' 
are the requirements comprehensive enouS to Jve fefol'l'' 
tion valuable for statistical purposes Amon/thV T^f" 
exceptions is New York, where to a.«L ^^^ t "?**^'^ 
a labor market bulletin 'by the de^ment of fat'"='"°" "^ 
employment agents must keep thKcordr-fn /' ^7^*° 
as may be required by the conTisioner of labor "n „T 

omces. ihe province of Ontario CflnflHa w ,, 

to $1. An agency may not take any fee from a wo„ W l^ 
employee or engage a person for an employer^^less k hlt^ 
hand a wntten and dated order from tLTmployer cove^,^" 
the position m question. The law ha<: n^f ul ■ ^°^®'^"g 
long enough, however, to deteiLt: its practiS r^uirTr 
the_besU>f the American laws, it fails t'o S«f ^i^y ^t 

' Ontario, Laws 1917, C 37 «"stence of a strike or lockout. 



) ftMmn'aj gn 



UNEMPLOYMENT 



295 



trol agencies doing an interstace business. Some of the worst 
abuses have occurred among employment offices of this type. 
The validity of state regulation of private employment 
agencies has seldom been denied by the courts. A California 
statute limiting the amount of charges was declared an un- 
constitutional infringement on the right to contract/ but 
similar provisions in other states have, as far as is known, 
been uniformly upheld. The requirement of a Hcense has 
been sustained, even when the license fee was placed so high 
as to be practically prohibitive. Thus a Georgia law, fixing 
a fee of $500 for each county in which the agent operated, 
was upheld by the supreme courts both of the state 2 and of 
the United States,^ the latter decision being followed in other 
southern jurisdictions.^ The prevailing view is that license 
regulations have for their object the promotion of public 
health, safety, morals, and convenience, that they tend to 
prevent fraud and extortion, and hence that they are within 
the police power of the legislatures even though they may 
somewhat restrict the right to carry on a lawful business 
without legislative interference.^ 

The almost unanimous testimony of investigators and public 
officials, however, is that these provisions have not been suc- 
cessful in stamping out the abuses of private offices, and the 
result has been a widespread movement for the abolition of 
such offices altogether. Complete suppression of private em- 
ployment bureaus was recommended by the Trades and 
Labour Congress of Canada at its annual meeting in 19 13," and 
a resolution of similar tenor was adopted at the 19 14 conven- 
tion of the American Association of Public Employment 
Offices. The popular protest against the abuses of private 
commercial agencies was voiced by the adoption in the state 
of Washington of an initiative measure prohibiting the coUec- 
tion of fee s from workers by an employment agent. The rea- 

'Ex parte Dickey, 144 Cal. 243, 77 Pac. 924 (1914). The statute in- 
validated was California, Laws 1903, C. 11. 

^Williams v. Fears, no Ga. 584, 35 S. E. 699 (1900). 

* Williams V. Fears, 179 U. S. 270, 21 Sup. Ct. 128 {1900). 

•State t;. Napier, 63 S. C. 60, 41 S. E. 13 (1902): State v. Roberson, 
136 N. C. 587, 48 S. E. 595 (1904). 

People ex rel. Armstrong; v. Warden of the City Prison of N. Y i8^ 
N. Y. 223, 76 N. E. II (1905): Price v. People, 193 111. 114, 61 N. E. 844 
(1901). « Dominion of Canada Labour Gazette, Vol. XIV p 448 



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296 PRINCIPLES OF LABOR LEGISLATION 

tees from the workers for furnishing them with employment 
.. resists frequently in their becoming the victims of iToTi 

S the st^t -°"tv^ '' *'"^'°^^ '^^^'^^-^^ *° '^^ -'f"- 
01 xne state. This measure was expressly based on the 

pohce power and the United States District Court upheld the 
prohibition inasmuch as "The state, under its police power 
can adopt any act which reasonably protects its citizen^r a 
class of ctuens. from fraud and extortion."^ But inion 
the United States Supreme Court in a five-to-four Li Jon 
held the law unconstitutional as "arbitrary and oppresX " 
thl'fn ""'^"^.'•f' riction on the liberty of The appdlants and 
therefore a violation of the fourteenth amendment.' The 

TbZ"^ of t°h^'"'°" r^"^^''^"^ ^^-ts regarding the actual 
abuses of the pnvate agencies rather than abstract principles 
of law. Two years later the first official International Labor 
Conference established under the League of Nations reTm- 
mended the abolition of all fee-charging employment ag™s. 
nrnw ^'? Wisconsin legislature attempted to deal with the 

mklTir"".^ "^"^ ^"^'^' ^^ f^'^'"^ ^^^ '^^^ industrial com- 
mission discretionary power to refuse licenses to private em- 
ployment agencies if the public bureau in the co^munitHs 
sufficient to supply needs.^ The practical working of ths 
experiment, and the attitude of the courts toward it will be 
watched with interest. 

nriv-.tT'*'"' °^ T^^' '°""*"^' ^''°' dissatisfaction with the 
steos forX"''' ^K«"-'es has led to more or less complete 

Hcensesm^, J '^^''T\ ^ °'™''" ^'' °^ '^lo states that 
licenses must be refused to private employment agencies 

when there is no absolute need for them, and further declares 

that the need does not exist when a public exchange is working 

normally in the locality.' Licenses in Austria are conditioned 

on the absence of a public employment office in the vicinity 

The province of Quebec seeks to restrict the number of private 

employme nt offices by charging a fee of $200 where thesis 

If^^?^::'^.^^^^^^-^' ■9.4. 



UNEMPLOYMENT 



297 

a public office, otherwise only $25. A French law of 1904 
authorizes the establishment of public offices by the com- 
munes and^ at the same time authorizes the closing of the 
private registry (commercial) offices upon payment of dam- 
ages.* The actual achievements under this law have, how- 
ever, been slight. 

2. Public Employment Exchanges 

The agitation for public employment offices has been due 
partly to the search for a remedy for the abuses of private 
agencies and partly to a deepening conviction that it is a 
proper function of the state to help the unemployed find work. 
The first American state to make provision for employment 
offices was Ohio in 1890, followed by Montana in 1895, and 
New York in 1896.2 The majority of the present laws have 
been enacted since 1900. 

(i) State and Municipal Offices 

There were in existence in the country, prior to the general 
readjustment forced by America's entrance into the world war, 
between eighty and ninety state and municipal employment 
exchanges, maintained by some twenty-three states ^ and by 
more than a dozen cities.* 

1 Law of March 14, 1904, Art. 11. See Btdletin of the International 
Labor Office, i<)04, French edition, p. 48. 

' The original Montana and New York laws were soon repealed. 

'By the end of 1916 provision for state employment exchanges had 
been made in California, 191 5; Colorado, 1907; Connecticut, 1905; 
lUmois, 1899; Indiana, 1909; Iowa, 1915; Kansas, 1901; Kentucky, 
1906; Maryland, 1902 and 191 4; Massachusetts, 1906; Michigan, 1905; 
Mmnesota, 1905; Missouri, 1899; Nebraska, 1897; New Jersey, 191 5; 
New York, 19 14; Ohio, 1890; Oklahoma, 1908; Pennsylvania, 191 5; 
Rhode Island, 1908; South Dakota, 1913; West Virginia, 1901; and 
Wisconsin, 1901. 

*In 191 5 public employment exchanges maintained by municipalities 
were to be found in Phoenix, Ariz.; Los Angeles, Sacramento, and San 
Franasco, Calif.; Kansas City, Mo.; Butte, Great Falls, and Missoula, 
Mont.; Newark, N.J. ; New York, N. Y.; Portland, Ore.; Pittsburgh, 

;i'a> ^^^"^°"^' ^^•' Aberdeen, Everett, Hoquiam, Seattle, Spokane, 
and Tacoma, Wash.; and perhaps in a few additional cities. The three 
states of Montana, Louisiana, and Idaho respectively authorize, en- 
courage, and require cities to set up such agencies, but provide for no 
central administrative control. 



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298 PRINCIPLES OF LABOR LEGISLATION 

Some few states create a state employment office, but make 
no provision for local branches. Since the work of such an 
office must be conducted almost entirely by the slow and 
unsatisfactory "mail order" method, this type of law has not 
yielded very important results. The West Virginia bureau at 
Wheeling placed about 2 ,000 applicants each year * in the 
eleven years following its establishment, but the office con- 
ducted in Baltimore, Md., under the law of 1902 has had 
only a nominal activity ,2 and the Nebraska law establishing 
a public employment office in the bureau of labor has, because 
of lack of funds, been practically a dead letter.^ So ineffec- 
tive was the Maryland office that in 19 14 a special depart- 
ment was created in the local immigration bureau, for the 
purpose of securing "efficient farm help to meet the de- 
mands for such labor in the agricultural communities of the 
state.'* 

The remaining states which have legislated upon this sub- 
ject authorize the establishment of local offices, usually under 
control of the bureau of labor. This is the most important 
type of public employment bureau law in this country, and is 
well exemplified by the New York statute of 1914."* 

By this statute a bureau of employment is established in 
the state department of labor, under the immediate charge 
of a director, who must be under civil service and who must 
have "recognized executive and managerial ability, technical 
and scientific knowledge upon the subject of unemployment 
and administration of public employment offices and recog- 
nized capacity to direct investigations of imemployment 
and public and private agencies for remedying the same." ^ 
The industrial commission may establish such local offices as 
it deems necessary, each to be in charge of a superintendent 

* United States Bureau of Labor Statistics, Bulletin No. log, 191 2, 
"Statistics of Unemployment and the Work of Employment Offices," 

p. 137. 

* Ibid., pp. 127-129. 

* Ibid., p. 131. 

*New York, Laws 1914, C. 181. 

^ The desire of the framers of the New York law to assure the selection 
of specially trained men for the work of managing the state employment 
bureau resulted in the appointment of a director who had many years of 
experience as an investigator of the organization and methods of employ- 
ment bureaus. 



UNEMPLOYMENT 



299 



under the general supervision of the director. These local 
offices are to register applications from those seeking employ- 
ment or employers seeking workers, and make periodic 
reports to the director. Any office may be subdivided into 
separate departments for men, women, and juveniles, or other 
class of workmen, as farm laborers. The service is to be free 
and penalties are prescribed for the acceptance of fees by the 
officials. A coordination of the activities of the local bureaus 
is to be facihtated by a labor market bulletin and the inter- 
change and publication of lists of vacancies. Partial recog- 
nition is given to the common European policy of joint control 
by directing the commissioner of labor to appoint for each 
office a representative committee composed of employers and 
employees, with a chairman agreed upon by the majority. 
On the request of a majority of either side the voting on any 
question must be so conducted that there shall be an equality 
of voting power between employers and employees, notwith- 
standing the absence of any member. Similar committees 
have under the Wisconsin Industrial Commission been for 
years an indispensable adjunct to the pubHc exchange at 
Milwaukee, and are provided for in the 19 15 laws of Illinois ^ 
and Pennsylvania.2 They were also recommended by the 
first official International Labor Conference in 19 19. 

One of the most comprehensive state organizations of public 
employment offices was that effected by Ohio to meet the 
state's war-time employment problem. At the outbreak of 
the war seven relatively efficient city-state offices were in 
operation in large industrial centers. In June, 191 7, their 
management was turned over to the state council of defense, 
which divided the state into twenty-one districts, each con- 
taining several counties, and established fourteen additional 
offices, so that there was one in the principal city of each dis- 
trict. Certain expenses of each new office were paid by the 
city and the state. The staff of the old offices was also 
increased to provide outside men to solicit orders for farm 
and industrial help and to enable the offices to be kept open 
Saturday afternoons and until nine o'clock in the evening. 
A central clearing house was organized at the state capitol. 

^ Illinois, Laws 191 5, p. 414. 

' Pennsylvania, Laws 191 5, No. 373. 



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300 PRINCIPLES OF LABOR LEGISLATION 

Particular attention was paid to supplying farm labor. Each 
office made a monthly canvass of the labor needs of the fanners 
m Its district, and both the local and the central offices carried 
on publicity campaigns to show the advantages of farm work 
Demands for help which could not be met locally were referred 
to the central clearing house. 

Perhaps the most controversial point in the administration 
ot a bureau is the policy to be pursued in time of strike or 
lockout. The first Illinois law establishing state exchanges 
m 1899^ was four years later declared unconstitutional be- 
cause of the provision that applications to fill places vacant 
because of a stnke were not to be received.^ The court held 
that this provision deprived citizens of the equal protection 
of the laws guaranteed by the fourteenth amendment, inas- 
much as It discriminated between employers whose men were 
on stnke and other employers, and also between workmen 
who wished to take places vacant because of a strike and work- 
men who did not. Wisconsin had a similar experience. The 
healthy instinct of which this prohibitory clause was an un- 
skilful manifestation has been satisfied in most American 
exchanges by publicity. Under the New York law for in- 
stance, either party to a trade dispute may file a statement, 
which, with any answer, must be exhibited at the exchange 
The prospective employee is infonned of the statements at 
the same time that he is infonned of the position, and it is 
lett for him to decide whether or not to take the work In 
Massachusetts it is even the practice in case of an industrial 
dispute to stamp the introduction card which the employee 
IS to present to the employer with the words, "There is a 
stnke on at this establishment." Under the publicity policy 
very few appHcants take strike-breaking jobs. Employers 
and labor union representatives are thoroughly satisfied, and 
consequently the exchange escapes the rocks of disaster on 
either side. As an important corollary to this method of 
handling a strike situation, the New York law includes the 
further stipulation that no applicant is to suffer any dis- 
qualification or prejudice at an exchange if he refuses to accept 
an offered job on the ground that a strike or lockout exists 
J Illinois, Laws 1899, P- 268. 
Mathews v. People, 202 111. 389, 67 N. E, 28 (1903). 



UNEMPLOYMENT 



3<^i 



or because the wages offered are lower than those current in 
the district for the same work.^ 

Careful registration of all applicants is provided for, and 
the industrial commission may also specify the form of regis- 
ters for private agencies which must furnish information on 
request. Five per cent, of the annual appropriation for the 
bureau may be spent in advertising. 

A special feature of the law is the provision for assistance 
to juveniles somewhat similar to the EngHsh system. Chil- 
dren of working age may register at the schools, and a sub- 
committee composed of employers, workmen, and persons 
familiar with education or other conditions affecting juveniles 
must be appointed by the advisory committee to advise in 
regard to the management of the juvenile department of the 
employment offices and otherwise to assist parents and chil- 
dren with respect to the choice of employment. No other 
American law contains an exactly similar provision, though in 
a few offices energetic superintendents are endeavoring to de- 
velop this side of their work, and in the Pennsylvania act of 
19 1 5 special anangements are made for cooperation with 
school placement bureaus and with the school authorities 
generally. 

Often, as has been recognized in the British and German 
systems, lack of railroad fare to reach an offered position is 
a serious obstacle to a willing but moneyless worker, yet no 
American state authorizes its employment bureau officials to 
advance the needed transportation. A few superintendents 
do, however, advance fares in exceptional cases, and the Wis- 
consin exchanges frequently turn over to applicants the trans- 
portation advanced by the prospective employer, checking 
the man's baggage to the employer as a safeguard. During 
the war the Minnesota Commission of Public Safety set aside 
$1,000 to be used as a revolving fund for advancing fares to 
men placed by the state emplo>inent office. Considerable 

*The Illinois court, however, following its line of argument in the 
Mathews case (see p. 300), has declared even the requirement of pub- 
licity on labor disputes to be unconstitutional, on the ground of threefold 
discrimination between certain employers and others, between certain 
workmen and others, and between employers and other persons making 
contracts. (Josma v. Western Steel Car & Foundry Co., 249 111. 508, 
94 N. E. 945 (1911).) 



I 



! 



M ■; 



ill 



■. 



i 



302 PRINCIPLES OP LABOR LEGISLATION 

^n'r' IT^l'^'? ''^^''"^ '^"^ '"^^ t° "-^^ive these ad- 

Cd were ^e^ han c ° ''"^"^ ""^'"'^^ *'^ '°^ fr<™ '^e 
u.iu were less than 5 per cent., and arose ordinarilv from tho 

farmers to whom men were sent securing other SanTthl 

Of ":^ '° "T^""^ "'^ employment office ^ ^'^'^ 

o^^ c^rte" tTe'!4im "'« '^ ---ipalities under their 
^Z. ^r ' ^^"'® "'^'^^ established in 1804 has been 

SooI^nT'^Tf "'■ fi'""« ^3.34. positions fn ,9^" 
An important part of the activity of this office has hp^n fL 
shipment of unskilled workers to hop-fields and lu^b^-'c^p! 
in large groups, which has helped to keep the percaStTTost 
of ffling positions down to the phenom^enall/low ^e ^ 

ptSeXoi^J" ^~^^^^V^^^^^^ 
l7h^l u r ^"'^ °^ Af?riculture, the National Farm 

sfn^ ha'es'tZ t' '''V'^'''"' ^'^^'"^ °' harvest han™ 

most only a few weeks' worl i^ *'°""t'7' ^nd furnishes at 

necessai^^o deve.o7:teTLTrm::?e%S,i;^^ 

the large numbers of workers who "follow the o-oos " a^^ fn! 

between th^e 'officeTrtr sTelllS^ r^^rr 
Notwith.tr T '^r '*"P '" ^^'^ "Sh* direction." = 

tunities tor employment. Only about ho\{ i-h^ ^ ^ 
represented Due in ^^nV r^ • \ - *^^ ^^^^^ ^^^ 

nf +1.^ ^^^ ^^ civil-service requirements manv 

seen^y on paper, others are poorly located, in out-ofSe" 



UNEMPLOYMENT 



303 



way places, and inadequately heated, lighted, and ventilated. 
Many have therefore driven away the better class of workers, 
and deal only with casuals. Appropriations are usually too 
small for efficiency. A uniform method of record-keeping has 
yet to be adopted. Statistics are non-comparable, and fre- 
quently unreliable, if not wholly valueless.^ There is prac- 
tically no interchange of information between various offices 
in a state or between states. In short, workmen are still 
undergoing want, hardship, and discouragement even though 
often within easy reach of the work which would support 
them, if they but knew where to find it. 

Nor does the evil end there. Every one who has studied 
the problem realizes that method and system in putting men 
and opportunities for work in touch with each other will not 
of themselves prevent oversupply of labor or of jobs. They 
will do so no more than the cotton exchange guards against 
an over- or an undersupply of cotton. They will serve merely 
as levelers in the scales of labor supply and labor demand. 
Besides the unemployment which is due to the failure of men 
and jobs to find each other, there is much due to other causes 
which even the best system of employment exchanges would 
not directly eliminate. 

4 But close students agree that these other causes of unem- 
ployment cannot be successfully attacked without a basis in 
comprehensive, conscientiously collected information such as 
cannot be furnished by our present machinery for dealing 
with the problem. Under present methods there exists no 
automatic, cimiulative means for collecting the facts. This 
results, of course, in exaggerated statements in both direc- 
tions.^ Oiu* paucity of information on this complex and vital 
question has continued, even though labor problems in one 
form or another have taken the lead as subjects for legisla- 
tion. Any scientific lawmaking on the programs of social 
insurance — especially unemployment insurance — ^and of vo- 
cational guidance must be grounded on facts of relative em- 
ployment and unemployment of the workers, by trades, by 
sexes, and by ages. Without a nation-wide system of labor 

* For a full discussion of these statistics, see " Operation of Public Em- 
ployment Exchanges in the United States," Atnerkan Labor Legislation 
Jievtew, May, 1914, pp. 359-371. 






i 



fl 



304 PRINCIPLES OF LABOR LEGISLATION 

out concentration of the infonnation now cdLS and not" 

(2) Federal Activity 
Growing realization of the forepnincr fo^fc t,- i. 
emphasized by the war-ti„.e sc^^^"L1?bortd toTh' 
development of the United States Emplo^ent Ser^l T^ 

rss^e^ Of iiis^srrfai ^^-^^-^"^ 

federal Bureau of SSi^^ ij^™;-. TnTr^y'^,?; 

offices in various parts of thZ'count;^ Tl °^'i "'"^'^ 
cooperate with sta^e pubHc bur^^^^- Net Wv'^l.f '° 

rntendedt"'' '"^ ".* "^ ^ ^P^^' divislIn^Ke frv"'" 
mtended to provide for war needs Ahn>,t- ,„ T^.f , 

workers were enrolled in the ••PM^^ ^ • r? '"^ ^^'"^'^ 

agreed to enter warTobs when ^sted'Trf h "'^''•'' ^'^^ 
and ahniit t^^^ u I requested by the government 



UNEMPLOYMENT 305 

ance. Complaints were already heard of a shortage of labor 
in eastern war plants, and the possibility of labor conscription 
was discussed. But in the absence of adequate national 
organization there was little authentic information as to the 
real state of the labor market. The director of the employ- 
ment service stated his belief, however, that "a national labor 
shortage was a myth. The apparent general shortage in 
certam states is due to faulty distribution." 

In the reorganization of the Department of Labor into the 
main national agency for war labor administration, which 
soon took place, the Employment Service was recognized as 
one of the eight new divisions established. It was granted 
$2,000,000 from the President's emergency fund and began 
developing cooperation with all state and municipal systems 
and opening new offices at the rate of almost 100 a month. 

By October 21, 1918, 832 offices had been opened, covering 
every state, the District of Colimibia, and Porto Rico. There 
were sixty-four offices in Illinois, sixty-nine in New York, and 
seventy-four in Pennsylvania. A number of the offices were 
for men or women workers exclusively, and several were 
devoted to placing railroad or farm labor. One Chicago office 
supplied demands for engineers and teachers. In June, 19 18. 
the Employment Service took control of the hiring of dock 
labor. A scheme for regulating the hiring of longshoremen, 
first worked out in New York City, replaced the former 
chaotic conditions by a systematic organization of the port. 
A central employment office was established with branches at 
every pier devoted to trans-Atlantic trade. Clearing houses 
were set up to facilitate the transfer of men from piers where 
labor was not needed to those where it was in demand. Em- 
ployers made a daily report of their labor needs, including 
scheduled ship arrivals, loading plans, and other facts neces- 
sary to inform the bureaus of the number of longshoremen 
wanted and at what time. The plan was similar to the port 
organization at London and Liverpool, England, whose adop- 
tion has long been advocated by students of employment 
methods. 

Special plans for handling farm labor were also devised. 
The services of all third and fourth class postmasters and rural 
mail earners were enlisted to receive applications and send 






M 



306 PRINCIPLES OF LABOR LEGISLATION 

all orders not filled locally to the nearest public office. News- 
papers in cities of over 20,000 which had no pubhc offices were 
also asked to do similar work. Field agents were sent out in 
sections where the problem of farm labor was most acute. 
The cooperation of the Department of Agriculture was 
secured, and its country agents reported local shortages of 
help. During the harvest season temporary offices were 
opened in the wheat belt from Oklahoma to North Dakota 
to mobilize the harvest hands. 

Besides its great expansion, the administrative machinery 
of the federal Employment Service was completely reorganized 
during the year. In the administrative work at Washington 
the following five divisions were created: Control, Field Or- 
ganization, Clearance, Personnel, and Information. The Con- 
trol Division was in charge of general correspondence, statistics 
and research, expenditures, and accoimts. The Field Organi- 
zation Division supervised the office organization, while the 
Clearance Division handled reports on labor supply and dis- 
tributed unfilled requests for help. The Personnel Division 
dealt with the selection and training of help and worked out 
a standard classification of occupations. Publicity and the 
weekly U. S. Employment Service Bulletin were in charge of 
the Information Division. The thirteen employment districts 
into which the country had been divided were abolished, and 
the responsibility for organization centered in a federal direc- 
tor of employment in each state. To advise the directors on 
general questions of policy, "state advisory boards" were 
formed, consisting at first of two representatives of employees 
and two of employers. On October 15, 1918, these boards 
were asked to add two women members, who should also 
represent employers and employees respectively. 

Under its expanded organization the federal Employment 
Service, between January, 1918, and March, 1919, received 
applications for no fewer than 10,164,000 workers, registered 
5»323.509 persons, referred 4,906,556 to positions, and reported 
3*776,750 positions filled. Far-reaching dependence of em- 
ployers on the service began on August i, 19 18, when by 
presidential proclamation all employers engaged in war work 
who employed more than 100 persons were required to hire 
their unskilled laborers through the service. 



UNEMPLOYMENT 



307 



Following the cessation of hostilities, the service attempted 
to direct the replacement of soldiers and war workers in civil 
pursuits. In cooperation with chambers of commerce, local 
councils of defense, and other agencies, it established 1,850 
special bureaus for the placement of returning soldiers and 
sailors. Representatives of the service were stationed in the 
demobilization camps to help the soldiers go direct from the 
camp to employment. 

But the service, in its expanded form, was entirely a creation 
of the war emergency, set up under the President's war powers 
and financed by war funds. Its machinery had to be built 
up and operated at the same time. In nine months it opened 
twice as many offices as England opened in four years. In 
the circumstances it was probably inevitable that certain 
weaknesses in organization and personnel should appear. 
Some employers also attacked the service on the alleged 
ground that it was dominated by organized labor, and it was 
charged that private fee-charging agencies carried on a sub- 
terranean campaign against it. In March, 1919, Congress 
refused to grant a deficiency appropriation of $1,800,000 to 
carry it to June 30, the end of the fiscal year. It was first 
stated that it would be necessary to cut down the offices 80 
per cent., but through the cooperation of cities, states, and 
voluntary welfare organizations, the continuance of 364 offices 
was secured for a time. For the next fiscal year, however, 
the service asked Congress for $4,600,000 and received only 
$400,000. On October 10, 19 19, it was announced that all 
the local offices were closed for lack of funds, and the only 
remaining activity would be the suppl3ang of information to 
local public offices. 

In April, after the first reduction in the service, a measure 
was introduced in Congress providing for a permanent 
federal employment system, cooperating with local offices 
on a subsidy plan. But no action had been taken on the 
bill up to January i, 1920, and in the temper of Congress 
at the time immediate action seemed unlikely. Yet sooner 
or later the United States must fall into line with other 
modem industrial countries and organize its labor market 
through an efficient national system of public employment 
bureaus. 



( 






308 'PRINCIPLES OP LABOR LEGISLATION 

0) European National Systems 
A'J^^f^^ European legislation to establish a well-unified and 

t^l?^I^t u ^^^^^ ""^ employment bureaus was the 
British labor exchanges act of September 20, 1900.1 Earlier 
efforts at establishing such bureaus were mad; by ?he (Sitral 
Unenaployed Body for London in 1906. under "Luthonty of 
i, TTH^^^"^ workmen act of 1905, and the resulting offices 
supplied he mam essentials of the present British syftem 

Ihe act of 1909 gave to the board of trade, a body corre- 
sponding somewhat to our federal Departments of the In- 
toTh; ^.TTTlu^""^ ^^^'' ^'^^ discretionary powers as 

pIki t ^^^''^ ^^' ^^^^' ^^^ ^^'^ ^^^ authorized to 
establish or take over labor exchanges wherever it thought fit, 

to make regulations for the management of these agencies 

establish ^d'""' ^^-^^-^ by any other authoritiesfand to 
establish advisory committees to assist in the management of 
the exchanges. With the approval of the treasury it might 
authorize loans to cover traveling expenses of workers for 

exchTn^'f ' 'f.' ^f .'^""^ ^^^^"^^ ^" emploM 
exchange. In 1917 the administration of the system was 

transferred to the newly created ministry of labor ^ "^ ^^ 
Ihe general regulations ^ made by the board under au- 
thonty of the act set forth in great detail the rules of organiza- 
tion and management of the offices. Registrations of aDoli- 

^v?irs^'"^'^ ^^f i^ ^.^^^^^ ^"^ ---^ -^^erSn 

thTnlrt^^ ^"'"''^ '.' "^^ obtained. During a labor dispute 
the parties are pennitted to file statements in regard to the 
disagre^ent and applicants are to be infonned of its exist! 
ence. Applicants who refuse positions because of labor dis- 

cuil^eAtTn thTr^^ ^^A ^^^^' ^^"'"^ ^'^ ^^^^^ ^han those 
current in the trade, do not sacrifice any of their privileges to 

future services of the exchanges. The offices ''shall undeiSke 

^v^Jr /^-'^ ^l'^ 'T'^ '^ ^^^'' ^' ^'^-^ conditions' 
beyond supplying what information may be in their possession. 

Ihe ge neral regulations also prescribe the conditions on 

Offil^to,\^2\^' ^°' ^"" '^"' ''' ^«^'^^'« -/ ^^ InUrnational Labor 
rr^Jrianuar?^^^^^^^ ^"'^"^ ^^^^''^^ ^-"-^^'^ ^^ the Board of 



UNEMPLOYMENT 



309 



which railroad fares may be advanced as loans to workmen 
who are sent to other towns to take employment. No ad- 
vances are to be made unless the distance to be traveled is 
more than five miles, nor to points where a labor dispute is 
in progress or when the wages offered are below the current 
rates. Care is also to be taken to avoid "tmduly encourag- 
ing rural laborers to migrate from the country to towns.** 
In the first thirty-eight months of the operation of the ex- 
changes they made advances to 28,321 workmen, totaling 
$40,360, of which sum only 1.6 per cent, had been written off 
as irrecoverable.^ About $48,400 a month was advanced for 
fares in 1918. 

Prior to the transfer of the exchanges to the ministry of 
labor, advisory committees, consisting of equal numbers of 
representatives of employers and workmen appointed by the 
board of trade, with a chairman appointed by a majority of 
each group or chosen by the board, were formed for large areas. 
At least one was organized in each of the eight main districts 
of the system. The committees considered mainly questions 
of general principle referred to them by the board of trade. 
But beginning in 191 7, the ministry of labor developed a large 
number of local advisory committees having jurisdiction over 
one or more exchanges. Two hundred and fifty of such com- 
mittees were established. Besides equal nimibers of employ- 
ers and employees they might include small numbers of other 
persons nominated by the ministry to represent ''other inter- 
ests." They might consider any matter connected with the 
operation of the exchange. 

Special recognition has been given in Great Britain to the 
need of agencies for assisting juvenile workers in choosing 
an occupation, finding employment in that occupation, and 
avoiding frequent changes in the early years of their working 
experience. Under the labor exchanges act and under the 
education (choice of employment) act of 19 10 two distinct 
methods for the organization of juvenile exchanges have 
been developed. 

Under the labor exchanges act the board of trade issued in 
April, 1 9 13, its special rules with regard to the registration 

^ W. H. Beveridge and C. F. Rey, Quarterly Journal on Unemployment, 
July-September, 19 13, p. 77. 



• * 




3IO PRINCIPLES OP LABOR LEGISLATION 

of juvenile applicants. These rules provide that the board 
may appoint, after consultation with the local advisory trade 
committees, special advisory committees for juvenile employ- 
ment, to be composed of persons representing employers and 
workmen, and of persons familiar with education and other 
conditions affecting juveniles. In addition to advising the 
board with regard to juvenile employment, the committees 
assist boys and girls with respect to their choice of occupation. 
Thus the juvemle exchange is made an integral part of the 
adult exchange, cooperation with the schools is secured through 
the special advisory committee, and duplication of effort is 
avoided. This system is perhaps the one best adapted to 
American needs. 

Under the education act, on the other hand, the situation 
IS reversed. The law authorizes " local education authorities 
to give girls and boys mfoimation, advice, and assistance with 
respect to the choice of employment," > if such work is not being 
done by any other agency. Under this system, accordingly, 
the juvenile labor exchange is a part of the school system 
frequently its offices are m the education building, and co^ 
operation with the adult exchange established by the board 
of trade is secured through the advisory committee. The 
system has many good features, such as the close supervision 
of the educational authorities over the placement work but 
IS weakened by imperfect correlation between the two ex- 

whlw^' Liverpool furnishes a good example of this method, 
while the London offices typify the first * 

Starting with sixty-one offices in 1910. the number was in- 
crea^d until 391 were in operation during the war period. 
In addition there were 173 local agents in smaller centered and 
1.080 part-time officers "appointed primarily for the admin- 
istration of unemployment insurance in districts where the 
establishment of an exchange would not be justified " » Al- 
though th e country is only one-twenty-fifth as large in area 

'Quotation from title of act. 10 Edw. 7 & i Geo ^ C ,■, v^ t n 
text see Bulletin of the International Labo^ o£e vTvt t\F ' ^"" 



UNEMPLOYMENT 



311 



as America, it is divided into eight districts — six for England 
and Scotland, one for Wales, and one for Ireland. Each dis- 
trict has its divisional office or clearing house, which is in turn 
coordinated with the central office in London. During the 
war further subdivision was made, and forty-five "clearing 
areas" were established, each containing a clearing office 
covering from two to thirty-one local exchanges. Notices of 
unfilled positions are first circulated among the offices of the 
clearing area, and then, if necessary, and if the position is one 
for which a worker may suitably be brought in from a distance, 
they are sent to the central office in London, from which a 
description goes next day to every exchange in the coimtry. 
The national clearing house was said to circulate about 21,000 
notices of vacancies a day in 19 18. The exchanges bore the 
brunt of supplying the labor demands of the war and the not 
less arduous task of resettling workers and soldiers in peace- 
time occupations, filling about 1,000,000 vacancies annually. 
They are officially recognized to have been "of the greatest 
value" in this connection. 

The following table shows the voltmie of work of the ex- 
changes during the first nine years of their existence : 

OPERATION OF BRITISH LABOR EXCHANGES, BY YEARS ^ 



Year 


Number of 
Registrations 


Vacancies 

Reported by 

Employers 


Vacancies 
Filled 


19IO * 


1,590,017 
2,040,447 

2,465,304 

2,965,893 
3,442,452 

3,186,137 

3,658,689 

3,575,380 

3,739,064 


458,943 
788,609 
1,062,574 
1,222,828 
1,479,024 
1,797,646 
2,049,018 

1,999,442 
2,067,217 


374,313 
621,410 

828,230 

921,853 
1,116,909 

1,308,137 
1,557,235 
1,555,223 
1,514,712 


I911 


I912 


191^ 


1914 


I915 


1916 


I917 


I918 





National subsidies play an important r61e in European em- 
ployment bureau legislation. Several countries try to raise 
the efficiency of local public employment bureaus by grant- 
ing subsidies only to "recognized" offices, that is, offices which 

^ Great Britain, Ministry of Labor, Labour Gazette, March, 191 9, p. 83. 
' Eleven months. 




\ 






312 PRINCIPLES OP LABOR LEGISLATION 

have conformed to the standards fixed by the national govern- 
ment. Switzerland, Belgiimi, and the three Scandinavian 
countries have legislation of this character. In the Swedish 
law subsidies were authorized to meet the expense of special 
measures adopted to place workmen on the land, and the 
public bureaus have in consequence been especially useful in 
agriculture, drawing back into the country the superfluous 
labor of the towns. In 191 2 of the 105,000 positions filled 
by the thirty-two bureaus, 26,000 were in agricultural pur- 
suits.^ The Danish act of April 29, 1913, is one of the most 
important of European laws relating to public employment 
offices.^ It provides for the establishment of a central ex- 
change at Copenhagen, and authorizes branch exchanges to 
be conducted by towns, counties, or groups of towns. The 
minister of the interior is authorized to designate some of 
the recognized offices to act as central exchanges for sec- 
tions of the country. To supervise the entire system the king 
must appoint a director of labor exchanges, among whose 
duties is that of maintaining cooperation among the recog- 
nized local exchanges. In Germany up to the outbreak of 
the world war several hundred public employment offices 
were maintained by cities and voluntary associations. The 
majority of these offices were united in a loose voluntary fed- 
eration, and received subsidies from cities, states, and the 
national government. Early in the war an effort was made 
to secure greater centralization by the creation of an imperial 
employment bureau to cooperate with the municipal ex- 
changes, trade imions, and other interested bodies.' 

3. Systematic Distribution of Public Work 

A well-developed system of labor exchanges cannot, of 
course, create jobs, but in addition to bringing the jobless 
workers quickly and smoothly in contact with such opportuni- 
ties as exist it can register the rise and fall in the demand for 
labor. This knowledge would make possible intelligent action 
for the prevention and relief of unemployment through the 

* Erik Sjostrand, Quarterly Bulletin on Unemployment^ July-September, 
1913, p. 885. 

* Bulletin of the International Labor Office, 1914, pp. 1-5. 
•Alix Westerkamp, The Survey, January 23, 1915, p. 441. 



UNEMPLOYMENT 



313 



systematic distribution of public work and the pushing of 
necessary projects when private industry's demand for labor 
is at a low level. Public work would then act as a sponge, 
absorbing the reserves of labor in bad years and slack seasons, 
and setting them free again when the demand for them in- 
creases in private business. 



(f) Emergency Work 

Probably ever since unemployment became a modem in- 
dustrial .problem there have been more or less insistent de- 
mands that the machinery of government be used for putting 
temporarily to work those who were displaced from private 
industry during a period of depression. It was felt that sup- 
porting the unemployed in this way, or, rather, thus giving 
them the chance under community direction to support them- 
selves, was preferable to supporting them either by public 
relief or by private charity. It was not likely to cost any 
more, the stigma of pauperism would not be fastened upon 
self-respecting persons out of work through no fault of their 
own, and, finally, some improvement of permanent value 
to the community would have been furthered. 

As early as the panic year of 1857, when 70,000 were esti- 
mated to be unemployed in New York alone. Mayor Wood 
of that city sent to the common council a message in which 

he said: 

"I recommend that the comptroller be authorized to adver- 
tise for estimates for furnishing the corporation with 50,000 
barrels of flour and a corresponding quantity of corn-meal 
and potatoes, to be paid for by the issue of a public construc- 
tion stock redeemable in fifty years, and paying 7 per cent, 
interest; these provisions to be disposed of to laborers to be 
employed upon public works, at their cost price to the cor- 
poration, all these works to be commenced forthwith under 
the proper departments. Twenty-five per cent, should be 
paid in cash. Every man who will labor should be employed 
at a fair compensation, and the supplies thus provided be 
distributed in return." ' 



» Report of the Massachusetts Board to Investigate the Subject of the Un- 
employed, 1895, Part IV, pp. 7-8. 



( 



f^'**^S3a!fe" 



314 PRINCIPLES OP LABOR LEGISLATION 

Apparently the mayor's suggestion was not acted upon, 
but Central Park was then under construction and the city 
comptroller arranged to advance to the park commissioners 
$1 000 a day until such time as the city should take $25,000 
ot the bonds. The commissioners agreed in return to select 
not exceeding 1,000 of their workmen proportionally from the 
residents of each ward.^ In this way a considerable portion 
of the work was made available when it could exert the largest 
mfluence in preventing destitution and demoralization 

Dunng the severe unemployment crisis of 1914-1915 over 
100 cities throughout the country made special provision for 
carrying on public work of various sorts, such as sewer-build- 
mg street- and road-making, quarrying, forestry, drainage, 
waterworks, building, painting, and even clerical duties The 
work was maintained for periods ranging from less than a 
month to more than six months, thousands of men were em- 
ployed in from two-day to two-week shifts, and hours and 
rates of pay were as a rule the same as for regular employees 
on the same grade of labor. In the majority of cases the 
officials m charge declared that they had secured full efficiency 
from the workmen, and some even stated that necessary work 
had been done at a distinct saving. 

Experiences with emergency work have not always been 
gratifying. Poor work, increased expense to the community 
and political favoritism in the selection of applicants are 
among the faults which have frequently interfered with its 
accomplishing what was expected of it. On the whole how- 
ever, the opinion has been growing that these flaws are not 
inherent, but due to poor administration, and that if 
properly managed, emergency work can be made an 'im- 
portant agency in maintaining during slack periods the 
labor reserves needed when industry is booming. To secure 
the best results it must, of course, be kept out of the hands 
01 politicians. 

The policy of giving temporary relief employment is em- 
bodied into law in the English unemployed workmen act of 
1905, by which the central administrative body for London 
was auth orized to provide temporary work for the unem- 



UNEMPLOYMENT 



315 



ployed.* An attempt was made in this statute to differentiate 
relief employment from charity by stipulating that laborers 
accepting work were not to be disfranchised. In Germany 
relief work for the non-resident unemployed is often associated 
with hotels for itinerant workers. Several hundred of these, 
known as Herbergen, are private enterprises, but a more modest 
type of relief stations, or "home shelters," is conducted by the 
public authorities. 

There is no similar legislation in the United States, but the 
city of Seattle made a suggestive experiment in the care of the 
itinerant worker during the winter of 1 9 1 4- 1 9 1 5 . In that city 
public funds were advanced to maintain an itinerant workers' 
home, popularly known as "Hotel Liberty," and arrangements 
were made for work in clearing grounds, grading roads, and 
work on the pipe-line right-of-way. For two days' work on 
one of these jobs a man, registered at the hotel, was given a 
ticket good for twenty-one meals. The work was rotated so 
as to give all a chance to earn their board. The hotel was ably 
managed and more than repaid expenses. The Seattle Cham- 
ber of Commerce recommended that the institution be made 
permanent, and it has been suggested that a chain of similar 
hotels for itinerant workers might be established along the 
coast. 

(2) Adjustment of Regular Work 

It is fast becoming recognized, however, that to wait until 
the emergency has overtaken the community before the move- 
ment to provide public work is set on foot is wasteful and 
productive of unnecessary hardship. Public officials are 
therefore more and more turning their attention to prepar- 
ing in ordinary times for the period of stress which experi- 
ence has shown is likely to follow in a few months or a few 
years. 

One of the earliest American experiments in this direction 
grew out of an attempt to meet a specific emergency. In the 
winter of 1910-1911 the city of Duluth, Minn., confronted 
by an unusual ntimber of seasonal workers turned adrift by 
the closing of transportation on the Great Lakes, decided to 

* 5 Edw. 7, C. 18, Sec. I (5). 



{. 



r" 






'1 



316 PRINCIPLES OF LABOR LEGISLATION 

anticipate its need and cut through a wall of rock which 
blocked the chief thoroughfare. Drilling and blasting were 
done by regular city employees, but preparation of the rock 
for the crusher was assigned to the unemployed, who were 
given an average of three days* work each. Applicants were 
hired and retained only if they were fit and willing to work, 
and wages were set at $1.20 a day, a little less than the cur- 
rent rate, in order not to attract those who could find employ- 
ment elsewhere. Payment in meals, clothing, employment 
agency fees, or railroad fare was given by the associated 
charities, which referred the men to the work and was reim- 
bursed by the city.^ The plan worked so successfully that 
it was followed in subsequent years, and in addition the city 
has shifted much of its sewer building to the winter season 
to assist in equalizing the amount of employment. 

Such foresighted arrangement of public work is capable of 
considerable extension, and may be efficaciously used to 
counteract cyclical as well as seasonal fluctuations. The Eng- 
lish statistician Bowley estimates that if in the United King- 
dom a fund were set aside for public work to be pushed ahead 
in times of depression, an average of $20,000,000 yearly, or 
only 3 per cent, of the annual appropriation for public works 
and services, would be sufficient to balance the wage loss from 
commercial depression. ^ If his suggestion were generally ac- 
cepted, in each community or country a program of the 
amount of public work contemplated for several years in ad- 
vance would be laid out and then carefully planned to be 
executed in the lean years. Thus public work, instead of 
declining and thereby accentuating the depression, as is now 
often the case, would exert a strong influence toward stabil- 
ity. European experience shows that it is essential to the 
success of such a program that the work be done in the or- 
dinary way, the workers being employed at the standard 
wage and under the usual working conditions and hired on 
the basis of efficiency, not merely because they happen to be 
unemployed. 



* W. M. Leiserson, "The Duluth Rock Pile," The Survey, September 
20, 1913, pp.. 729-731. 

2 Great Britain, Royal Commission on the Poor Laws, Minority Report, 
1909, p. 1 195. 



UNEMPLOYMENT 



317 



Americans seem particularly unwilling to prepare in ad- 
vance for periods of industrial depression. They appear to 
think of the unemployment problem and to take action on it 
only in a crisis. Yet within the last few years the number of 
American cities acting upon this principle has steadily grown. 
Several progressive communities have made definite plans to 
reserve work on unimproved parks, sewers, and streets for 
future dull periods. Several, also, without planning definite 
undertakings, have issued bonds or established contingent 
funds to provide the resources when needed. In Alameda, 
Calif., a special annual tax of i cent on each $100 of taxable 
property was established in 19 15 to provide a relief fund for 
hiring on public work "unemployed or indigent residents." 

An interesting development in this direction was the Idaho 
law of 191 5, which, probably for the first time in the history of 
the country, recognized the "right to work." Every United 
States citizen who had been a resident of the state for six 
months, and who did not possess more than $1,000 worth of 
property, was guaranteed sixty days' emergency employment 
on the highways or other public work yearly. But before 
being put into operation to any large extent the law was 
declared unconstitutional on technical grounds involving the 
method of appropriating funds and not the general principle.^ 
It has not been reenacted. 

Pennsylvania, in 191 7, was the first state to establish a 
permanent fund to be used for public work in slack seasons.* 
The machinery for administering the fund was set up, and 
$40,000 appropriated. In 19 19 an opinion by the state 
attorney-general, to the effect that the appropriation did not 
lapse at the end of the regular appropriation period, facilitated 
its operation. 

During the brief period of unusual unemployment in the 
winter of 1918-1919 a very general resort to the remedy of 
public work was noticeable. A large amount was readily 
available, since all but the most necessary projects had been 
postponed during the war. The federal Department of Labor 
listed 6,285 pieces of work to cost $1,700,000,000. In Ohio 
and New York the governors called special conferences of 

* Epperson v. Howell, 28 Idaho 338, 154 Pac. 621 (1916). 
' Pennsylvania, Laws 191 7, No. 41 1. 






3i8 PRINCIPLES OF LABOR LEGISLATION 

state and city officials with a view to pushing public works. 
It is difficult to loam the exact effect of these and of similar 
action in a number of cities, but in the opinion of the special 
employment assistant to the Secretary of War such activity 
was the main cause of the decline in unemployment which 
began to be noticeable by the spring of 19 19. 

As the use of public work as a means of relieving imemploy- 
ment has spread, city officials have increasingly felt the ham- 
pering effect of charter limitations on the expenditure of 
money. Many makeshift devices have been adopted for de- 
feating these restrictions, such as raising money by public 
subscription, borrowing without interest, or transfer of funds 
between departments, and in some cases business men have 
had to furnish bonds to save the city officials from liability. 
Consequently the conviction has been growing that budgetary 
methods and, if need be, city charters must be modified to 
permit greater freedom in the use of money for these imder- 
takings. 

In Great Britain the use of public work on a national 
scale as an equalizing reservoir for the labor market is partially 
authorized by the development and road improvement funds 
act of 1909.^ This law sets aside sums of money which may 
be advanced either as grants or as loans to associations not 
organized for profit, for the purpose of aiding and developing 
agriculture and rural industries, forestry, land reclamation 
and drainage, rural transportation, harbors, inland naviga- 
tion and fisheries. The act was not passed primarily as an 
unemployment measure, but contains the provision that when 
the execution of any work involves the employment of labor 
on a considerable scale the commissioners must take into 
consideration "the general state and prospects of employ- 
ment." Under this clause a certain amount of influence can 
be exerted toward the timely initiation of public improvements, 
but its scope is usually overestimated.^ In France and Ger- 
many the policy of pushing public work in slack seasons has 
had a considerable development under municipal control. 

* 9 Edw. 7, C. 47. 

«A. D. Hall, "The Development Act and Unemployment," National 
Conference on the Prevention of Destitution (Great Britain), Report of 
the Proceedings of the Unemployment Section, 191 1, p. 245. 



UNEMPLOYMENT 



319 



The principle under discussion has taken firm hold among 
those interested in combating involuntary idleness, and in 
19 13, as the result of careful studies in many countries, the 
following recommendations were laid before the International 
Conference on Unemployment: (i) That public works be 
distributed, as far as possible, in such a way that they may 
be undertaken in dull seasons or during industrial depression; 
(2) that budget laws be revised to facilitate the accimiulation 
of reserve funds for this purpose; (3) that permanent insti- 
tutions be created to study the symptoms of depression in 
order to advise the authorities when to initiate the reserved 
work; (4) that such work as land reclamation and improve- 
ment of the means of communication, which would tend to 
increase the permanent demand for labor, be especially under- 
taken; and (5) that in order to secure the fullest benefits from 
the reserved work, contracts should be awarded not as units, 
but separately for each trade. The first International Labor 
Conference, meeting at Washington in October, 19 19, recom- 
mended to member countries that they should "coordinate the 
execution of all work undertaken under public authority, with 
a view to reserving such work as far as practicable for periods 
of unemployment and for districts most affected by it." 



4. Regularization of Industry 

While methods of utilizing public work to counteract the 
fluctuations of employment in private industry have for some 
time occupied the attention of lawmakers, recently the de- 
mand has found legislative expression that private industry 
turn some attention to solving the problem at its source by 
reducing, if not eliminating, these fluctuations. Regulariza- 
tion of industry is demanded by the interests of employer and 
employee alike. The employer, with an expensive plant, re- 
quires steady production to keep down overhead expenses 
and to secure the best returns from the business; the em- 
ployee needs steady work to prevent destitution and conse- 
quent demoralization. It is not surprising, therefore, to find 
governments exerting pressure to the end that, as far as pos- 
sible, every job be made a steady job. Society has in the 




'f<xT 



s-'*yaaE^,.^. 



320 PRINCIPLES OF LABOR LEGISLATION 

past attempted to adjust itself to the ups and downs of 
business; it is now beginning to insist that business avoid 
ups and downs. 

Methods of regularization are as various as the industries 
concerned, if not as various as the individual establishments 
Many employers have found it economical to organize employ- 
ment departments for the purpose of studying and remedyinjj 
fluctuations in the size of the working force, and in Boston 
New York, and Philadelphia associations of employment man- 
agers were formed as eariy as 1912 to discuss their common 
problems. Through these departments considerable hardship 
has been avoided by reducing excessive "turnover" of labor 
by transferring workers from slack departments to busy ones 
instead of discharging them, and by employing the whole 
force on part time rather than part of the force on full time 
Careful planning of output for months or even for a year 
ahead, the development of supplementary lines such as tennis 
shoes and rubber tires in a rubber-shoe factory, and special 
measures to overcome weather conditions, such as the intro- 
duction of artificial drying in the brick industry, have also 
been found helpful. Through cooperation with other em- 
ployers for the maintenance of a common reserve of labor in- 
stead of a separate supply for each firm, the intermittent char- 
acter of such occupations as the building trades and dock 
work has been effectually reduced. 

Employers, however, are frequently no more far-sighted 
than are other persons in the community, and may neglect 
what IS obviously to their own and other persons' economic 
advantage if it requires much additional exertion or fore- 
thought. Hence arises the need for governmental stimulus 
toward regulanzation which is found in some of the newer 
legislation on unemployment. 

Perhaps the most striking illustration of what can be done 
to "decasualize" casual employment is the system now in 
operation on the Liverpool docks, where thousands of men 
used to eke out a precarious and irregular longshoreman's 
livelihood. Each ship company sought to attract enough men 
every day to meet the need on the busiest days, and it has 
even been alleged that some employers deliberately parceled 
out the work so that many more than the usual number em- 



UNEMPLOYMENT 



321 



ployed were encouraged to be on hand and available when 

wanted.^ 

To counteract the demoralizing results of this chronic 
underemployment, what is known as the Liverpool dock 
scheme was inaugurated by the British Board of Trade in 
July, 191 2, under authority of the unemployment insurance 
part of the national insurance act. In the first year of its 
operation sixty-eight employers became parties to the plan, 
and 31,000 dockers were registered.^ A metal tally was 
issued to each man; only men holding tallies are employed, 
and new tallies can be issued only with the approval of the 
joint committees of workmen and employers which are assist- 
ing to administer the scheme. Workmen who fail to be hired 
at the employers' regular stands go to one of fourteen "sur- 
plus stands," which are in communication by telephone with 
one another and with the six sectional clearing houses that 
have been established in connection with the government 
labor exchange. The system makes it possible to do the 
same work with fewer men, but these are employed much more 
regularly. The adjustment is said to have caused temporary 
hardship for some workmen, but it is hoped that in time each 
employer will keep the nucleus of a force on regular wages 
and rely for extra men on a fluid reserve to be m.aintained 
jointly by all the employers of the port.^ The advantages of 
maintaining one reserve for the industry as a whole instead 
of separately for each employer, are obvious. Somewhat 
similar schemes are in force among the dockers of Goole and 
of Sunderland, the cloth porters of Manchester, and the ship- 
repairers of Cardiff and Swansea."* Under the war-time ex- 
tension of the United States Emplo^nnent Service, a similar 
scheme was started for New York longshoremen, but it had 
to be abandoned when the service was curtailed. 

Headway can be made to some extent against seasonal 
fluctuations also, under the proper encouragement of an effi- 



» R. Williams, The Liverpool Docks Problem, 1912, pp. 10-12. 
^Beveridge and Rey, "Labour Exchanges," Quarterly Bulletin on Un- 
employment, July-September, 1913, p. 789. 

' See R. Williams, First Year's Working of the Liverpool Dock Scheme^ 

1914. 

♦ Beveridge and Rey, Quarterly Bulletin on Unemployment, July-Sep- 
tember, 1913, pp. 795-799- 

21 




II 




'\ 






) 



h* 



322 PRINCIPLES OF LABOR LEGISLATION 

dent labor exchange system. During the winter, for instance. 
It has been suggested that building laborers could be assisted 
to take up ice-cutting or logging, or to secure some of the 
less skilled work in shoe, textile, or other factories which are 
busier at that season. Through the London employment ex- 
changes women's work in ready-made tailoring, which is 
busiest in the spring and fall, has been dovetailed with hand 
ironmg in laundries, which is heaviest during the summer. 

The Illinois and Pennsylvania laws of 191 5 establishing 
state employment bureaus instruct the administrative au- 
thonties to take steps toward the regularization of employ- 
ment, both public and private. Interesting possibilities are 
suggested by these measures, but in actual practice little, if 
anythmg, has been done under them. A more definite induce- 
ment to the regularization of industry on a comprehensive 
scale is offered through the establishment of unemployment 
insurance.* 



* See "Unemployment Insurance," p. 441. 



CHAPTER VII 

SAFETY AND HEALTH 

Prominent among the problems which the industrial revo- 
lution brought in its wake is that of maintaining safety and 
health in work-places. As long as industry was chiefly 
agricultural, or carried on about the family hearth, with tools 
relatively few and simple, the individual laborer might con- 
trol the physical conditions under which he worked. But the 
drift during the late eighteenth and early nineteenth cen- 
turies from farming to manufacturing, and from homestead 
to factory methods, placed a growing proportion of wage- 
earners in a new environment. They toiled now upon prem- 
ises controlled not by themselves, but by another— the em- 
ployer. Instead of working in isolation or in small groups, 
hundreds were collected under one roof where the error or 
illness of one might affect all his neighbors. New machinery, 
new chemical processes, new forces such as electricity and com- 
pressed air, have been ceaselessly developed, each involving 
its own special dangers. Upon all production, speed, the rul- 
ing spirit of a machine age, has imposed its exactions. Nor 
have subjective factors been without their influence. Igno- 
rance, recklessness, and inertia, manifested now by the leaders 
of technical research, now by the masters of industry, and 
not infrequently by the workers themselves, have contnb- 
uted to create a situation in which the statistics of industrial 
accident and disease are often justly compared with those 
of the world's great battles. 

Conservation of the life, health, and energy of our millions 
of wage-earners is not an individual question. It is a social 
question, demanding social action. This does not mean that 
private or voluntary efforts of the workmen, or of industnal 
managers, or of physicians, should be in any way discouraged. 
On the contrary, such voluntary efforts should be vastly m- 



;W 



I 



324 PRINCIPLES OF LABOR LEGISLATION 
creased. But the prevention of industrial accidents and dis- 
^Uctlor ^^^ ^"^ ^dertaking to be left entirely to individ- 

Though more than half the waking hours of the ordinary 
wage-eamer are spent at his place of employment, it is o7e 
of the fundamental disharmonies of present-day industry that 
he has little or no control over the conditions which there 
surround him and which profoundly affect his well-bein^ 
and even his life. Individual complaint frequently leads to 
loss of employment rather than to improvement of conditions 
As a member of a labor union the worker's power is potentially 
increased, but is often, for various reasons, not effectively 
exerted. Regulation of the physical conditions of employ- 
ment cannot, on the other hand, be safely entrusted to the 
individual ^ployer, whose principal business, under com- 
petitive conditions, is to secure profits. While many em- 
ployers are exercising the utmost consideration for their 
work-people out of motives of humanity, and many more are 
doing so on grounds of efficiency, such motives cannot be said 
to have developed mto a controlling principle of industrial 
hri.f. ^"^ "^V^f industrial accident and disease problem 
be left to medical treatment alone, for prevention and not 
a ter-care IS the solution. Not only on account of the mag- 
nitude of the problem, but also because of its nature, the pro- 
tection of the wage-earner from dangerous conditions of em- 
ployment is a proper function of government 

Frequently it happens that without the aid'of uniform leeal 
regulations to force the recalcitrant minority into line even 
a vast niajonty of the manufacturers in an industry are power- 

i^lf ^T^,^^^^^ ^^f°™s ^^ich they freely admit are de- 
sirable. A striking example of this was revealed by the three- 
year campaign which cuhninated successfully in the poisonous 
phosphorus prohibition act. Match manufacturers represent- 
ing 95 per cent of the total product testified before Congress 
that they could not substitute a harmless compound for the 
shghtly cheaper poison without a uniform law compelling all 
employers m that industry to abandon the poison. AU of 
the other match manufacturers, representing the remaining 
5 per cent, of the product, stood out stoutly to the last even 
declaring that they would close their factories before they 



SAFETY AND HEALTH 



325 



would submit to this sanitary measure, already in compulsory 
operation in practically all civilized countries of the world. 
It required labor legislation to end the use of this unnecessary 
deadly poison before "phossy jaw," the most loathsome of 
all industrial diseases, could be abolished. 

Legislative activities for the control of industrial accidents 
and occupational diseases have developed in all important 
countries along four main lines, namely, (i) reporting, (2) 
prohibition, (3) regulation, and (4) compensation or insur- 
ance. All four lines of activity are closely interrelated, and 
depend for success largely upon one another. Reporting of 
accidents and diseases is purposeless unless it leads to pro- 
hibition or regulation of the sources of danger, and is likely 
to be incomplete if not made part of a proper system of com- 
pensation administration. Effort for prohibition and regula- 
tion gropes in the dark without the light of experience made 
available through thorough reporting, and is apt to be feeble 
unless stimulated by the cooperative financial pressure exerted 
by compensation. Compensation, in turn, is deprived, by lack 
of careful reports, of the necessary actuarial basis for success- 
ful operation, and accomplishes but the minor part of its pur- 
pose if the payment of benefits fails to lead to systematic efforts 
at prohibition or regulation. Upon the combined development 
of all four devices depends the efficacy of the modem legisla- 
tive movement for the protection of the industrial worker's 
life, limb, and health. Leaving 'he fourth step, compensa- 
tion, for treatment under "Social Insurance," this chapter 
will concern itself with the first three methods of attack. 




I 



I. Reporting 

While in many matters of social interest the gathering of 
statistics is well developed, in others only the beginnings have 
been made. In industry, for example, we know much about 
the value of the raw materials and of the product, but com- 
paratively little about the accidents and diseases which are 
entailed upon the workers in the creation of that product. 
Yet there can be no more important link in the whole chain 
of social effort for the prevention of industrial death and 
disabiUty than the securing of accurate data as to the nature 



t;(] 



326 PRINCIPLES OF LABOR LEGISLATION 

of the hazards, their extent, and the particular industries 
and estabhshnients m which they are most rife. The acquisi- 
tion of this knowledge is an integral part of the modem 
movement for the protection of life and health. It reveals 
the sore spots" of industry. Not only does it point out 
conditions mtroduced by changing methods in manufacture 
and elsewhere which call for correction, but after corrective 
legislation has been secured it acts as a valuable guide to and 
mdex of the efficacy of the administrative authorities. 

buch information, however, until comparatively recent 
years, had been intelligently sought, if at aU. only incidentally 
by special commissions which investigated some more press- 
ing phase of industrial abuse, submitted their reports, and 
disbanded. The idea of a permanent census on the matter 
is of tardy development. 

(i) Accidents 

It was not until 1886 that any American state placed an 
accident-reporting law upon its statute books, and again as 
in many other matters of labor legislation, it was Ma^sa- 
chusetts which took the lead. By the act of June i 1886 
manufacturing and mercantile corporations were required to 
report to the chief of the district police, the organization which 
then had charge of factory inspection, accidents occurring in 
their establishments and causing death or four or more days' 
disabihty. A penalty was provided for failure to comply 
Four years later the law was extended to apply to all pro^ 
pnetors of the designated classes of establishments, instead 
of only to corporations. Similar statutes were enacted in 
Ohio m 1888, Missouri in 1891, Rhode Island in 1896. and 
elsewhere dunng the same decade. 

These eariy laws did not bring satisfactory results Fees 
have seldom been offered for accident reports, and employers 
have appeared reluctant to give their establishments an un- 
enviable reputation for danger. Official enforcement, too has 
been lax. Prosecutions for failure to report have been rare 
and the imposition of the stated penalties still rarer "In 
none of them," said a federal investigator in 1897. of eight 
states which then had reporting laws, "is there any pretense 



SAFETY AND HEALTH 



327 



that anything like complete returns of accidents are ob- 
tained." * 

Since that time, in spite of its shortcomings and inade- 
quacies, so useful has reporting proven itself as a guide for 
inspection, safeguarding and advanced legislation, that it has 
steadily spread not only to new states, but to new branches of 
•industry.2 The kind of accidents to be reported varies great- 
ly, ranging from all injuries in the more advanced states to 
only those which result in death or in the incapacity of the 
injured workman for a stated length of time, as for two days, 
one week, and in rare cases for two weeks. The time of re- 
porting is variously fixed at "immediately," twenty-four or 
forty-eight hours, two weeks, once a month, and, in Louisiana, 
"semiannually." Accidents occurring to employees tmder 
the workmen's compensation acts must usually be reported 
immediately. Notification by mail on a blank provided by 
the proper state authority is in most cases sufficient, but in 
connection with fatal railway and street-car accidents a tele- 
phone or telegraph report, followed by a detailed written 
statement, is often obligatory. Reports are usually made to 
the state department of factory inspection, and a wide range of 
questions must be answered. A standard schedule adopted 
for use in important industrial states containing about half 
the manufacturing wage-earners of the country is divided 
into sections on (i) employer, place, and time, (2) injured 
person, (3) cause, and (4) nature and extent of injury, and 
each section asks a number of questions found by long ex- 
perience and careful study to be most successful in eliciting 
the desired information.* 

While much progress has been made since the beginning of 

1 United States Bureau of Labor, Bulletin No. 12, September, 1897, 
p. 565. 

2 A standard bill for industrial accident reports, drafted by the Ameri- 
can Association for Labor Legislation in 191 2, has been passed in several 
states. See United States Bureau of Labor Statistics, Bulletin No. 157, 
1915, "Industrial Accident Statistics," Frederick L. Hoffman, p. 151. 

» This schedule was prepared by the American Association for Labor 
Legislation, and has been indorsed by the American Statistical Associa- 
tion, the United States Bureau of Labor Statistics, the Workmen's Com- 
pensation Service Bureau, and the National Safety Council. By October 
I, 191 5, it had been adopted by the labor departments of CaUfomia, Iowa, 
Massachusetts, Minnesota, Nevada, New Hampshire, New York, Penn- 
sylvania, and Washington. 



^^' 



328 PRINCIPLES OF LABOR LEGISLATION 

the reporting movement in 1886, much remains to be done in 
the direction of extending and of introducing uniformity into 
the system. In a few states, and for a limited number of 
mdustries, good work is being done,i but the failure to cover 
all dangerous occupations and the wide differences in the 
meaning of reportable accident still render the data confus- 
ing and incomparable as between states. For a comprehen- 
sive view of the situation in all industries and throughout the 
country dependence must for the present be placed on the more 
or less scholarly estimates which appear from time to time. 
What is perhaps the most accurate as well as one of the 
most recent of these studies is based upon insurance experi- 
ence with nearly 38,000,000 lives, and places the number of 
fatal industrial accidents for 19 13 at 25,000, and the number 
of injuries involving disability of more than four weeks at 
700,000.2 The detailed figures are shown in the chart on 
the following page. 

^ Eight industries, it appears, are more hazardous than ser- 
vice m the United States Army, and of these mining, with 
metal mining predominating, is the most dangerous. ' Rail- 
roading, electrical work, and quarrying are high on the list, 
while general manufacturing, including ordinary factory 
work, is apparently safer than agriculture, in which the in- 
troduction of power-driven machinery has of late been add- 
ing peculiar new hazards to those previously involved in the 
handling of live animals. What these thousands of acci- 
dents, occurring in every industrial state and country, mean 
in terms of suffering, interrupted wage-earning, lowering of 
efficiency and deterioration of standard of living, our com- 
pensation laws are at last beginning to reveal with something 
like scientific accuracy. 

(2) Occupational Diseases 

Hardly less serious, if any, than the misery and waste 
caused by industrial accident is that entailed through the more 
insidious danger of occupational disease. 

^Especially excellent is the reporting work done by several industrial 
accident or workmen's compensation boards, notably those of California 
Massachusetts, New York, Ohio, and Wisconsin. ' 

2 United States Bureau of Labor Statistics, Bulletin No. 757, p. 6. 



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330 PRINCIPLES OF LABOR LEGISLATION 

Occupational disease has been defined as "morbid results of 
occupational activity traceable to specific causes or labor con- 
ditions, and followed by more or less extended incapacity for 
work." ^ American interest in the subject is mainly a product 
of the last few years. In 1910 it was possible to record only 
the appointment of the Illinois Occupational Disease Com- 
mission, the completion of an investigation of phosphorus 
poisoning in the match industry, and the holding of the First 
National Conference on Industrial Diseases, an expert com- 
mittee of which drew up a memorial on the subject for presen- 
tation to the President of the United States. Practically 
all of the many interesting American investigations and re- 
ports on this subject have been made since that time. 

The principal industrial health risks, as far as we now know 
them, may be conveniently classified according to their nature 
as follows: (i) dangerous gases, acids, and dusts (poisonous 
and non-poisonous); (2) harmful bacteria and micro-organ- 
isms; (3) compressed or rarefied atmospheres; (4) improper 
lighting; (5) extremes of temperatiu-e and humidity; (6) ex- 
cessive strain. Almost every calling involves danger from 
one or more of these. 

Considering merely the industrial poisons, "those raw ma- 
terials and products, by-products, and waste products which, 
in their extraction, manufacture, and use in industrial proc- 
esses may, notwithstanding the exercise of ordinary pre- 
caution, find entrance into the body in such quantities as to 
endanger by their chemical action the health of the work- 
man employed," we find already prepared a careful list of 
fifty-four,2 one of which alone, lead, is in daily use in more 
than 150 trades, causing "painters' colic," "wrist drop," or 
even death. Connected with dusty trades of all sorts, from 
silk-weaving to quarrying, are found non-poisonous dusts 
which by infiltration and mechanical irritation produce vari- 
ous occupational lung diseases. Moreover, the bacillus of 
anthrax may infect tanners and workers on hair goods, while 

*" Memorial on Occupational Diseases," American Labor Legislation 
Review, Vol. I, No. i, January, 191 1, pp. 125-143. 

* United States Bureau of Labor, Bulletin No. 100, May, 1912, "List 
of Industrial Poisons and Other Substances Injurious to Health Found 
in Industrial Processes," Th. Sommerfeld and R. Fischer, pp. 733-759. 






SAFETY AND HEALTH 



331 



ankylostomiasis, or "miners* hookworm," menaces those who 
toil in warmth and moisture underground. The tunnel and 
caisson worker dreads compressed-air illness. Less easy to 
trace, but perhaps even more widespread, are the obscure 
ailments which may arise in any industry, from insufficient 
or excessive lighting, from extremes of heat, cold, and htunid- 
ity, or from work too heavy, too persistent, and too intense 
without adequate periods of rest. 

Incomplete as is our information on the prevalence and seri- 
ousness of industrial accidents, even more incomplete is it 
with regard to specific trade maladies, some of which are 
now being recorded in our hospitals and dispensaries. The 
first American law for the compulsory reporting of these 
diseases was drafted by the Association for Labor Legislation 
after investigation of similar legislation in England and was 
enacted in California in March, 191 1. Within five years, as 
the result of vigorous and sustained effort, sixteen states 
enacted similar legislation.^ The earliest of these laws called 
for reports on all cases of anthrax, compressed-air illness, and 
poisoning from lead, phosphorus, arsenic, mercury, or their 
compounds, 2 to which were later added brass and wood alco- 
hol poisoning.^ The most recent tendency, however, is to 
make the laws include "any ailment or disease contracted as 
a result of the nature of the patient's employment," * in which 
form they will probably be productive of more important 
results. 

The duty of reporting falls upon the physician, who may 
be either a general practitioner treating the case, or, in states 
requiring a monthly medical examination of workers in special- 
ly hazardous trades, the physician making such examination. 
A standard certificate has been adopted in a majority of the 
reporting states,^ and requires the name and address of both 

^ California, Connecticut, Illinois, Maine, Maryland, Massachusetts, 
Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, 
Ohio, Pennsylvania, Rhode Island, and Wisconsin. 

* California, Laws 191 1, C. 485. 

' Connecticut, Laws 1913, C. 14; New York, Laws 1913, C. 145. 

* Massachusetts, Laws 1913, C. 813, Sec. 6. 

^ California, Maine, Maryland, Massachusetts, New Hampshire, New 
Jersey, New York, Ohio, and Wisconsin. Like the standard accident 
schedule, this certificate was drafted after careful study by the Associa- 
tion for Labor Legislation. 



i 



M-t 



332 PRINCIPLES OF LABOR LEGISLATION 

employee and employer, the nature of the business, the diag- 
nosis and symptoms of the disease, and other pertinent in- 
formation. In most cases reports must be made to the state 
labor department, but occasionally they go to the board of 
health, which transmits them to the labor department. In 
a very few cases ^ a small fee of 50 cents is allowed for send- 
ing in notices, but even where this is not done it is not felt 
that any undue hardship has been caused to the medical pro- 
fession by placing upon them this added duty. 

Reliable statistical data for the country as a whole are, 
however, still lacking. Again we must fall back on estimates, 
and careful American authorities declare, on the basis of Ger- 
man experience, that numbering our gainfully occupied popu- 
lation at 33,500,000, no fewer than 284,000,000 days* ill- 
ness occur annually, causing a social and economic waste of 
nearly $750,000,000.2 Of this enormous waste fully one- 
quarter, it is computed, could be prevented by deliberate 
effort, largely in the direction of greater care and cleanliness 
in the nation's workshops. Many unhealthful conditions in 
industry, also, while they may not lead to actual absence 
from work, are nevertheless productive of unnecessary physi- 
cal discomfort which reacts badly on the worker's health and 
strength. The effects of these daily minor drains upon in- 
dustrial efficiency are necessarily difficult to trace or to meas- 
ure, but they must in the aggregate be enormous. 

2. Prohibition 

The method of prohibition for the safeguarding of indus- 
trial workers is usually resorted to only under severe provoca- 
tion. But at times it appears to be the only effective way of 
removing an intolerable industrial hazard, and instances of 
its use are multiplying. 

There are two ways in which the prohibitive method may 
be applied. First, it may be used to exclude from employ- 
ment those most susceptible to danger, whether children, 
women, or certain classes of men. Second, it may be used to 
outlaw the substances or instruments which render employ- 
ment dangerous. 

* California and Connecticut. « Memorial on Occupational Diseases. 



y 



SAFETY AND HEALTH 



33:^ 



(j) Exclusion of Persons 

a. Children. Provisions for the exclusion of persons from 
industrial pursuits have been carried further with regard to 
children than with regard to any other group of wage-earners, 
on the general theory that the child is the special ward of the 
state and most in need of special measures of protection. 
The dangers thus sought to be guarded against may be 
to the child's life, limb, health, or morals,^ and the restric- 
tions which have grown up are based on considerations of age, 
physique, and education. 

(a) Age Requirements. The past century has witnessea an 
almost complete reversal of public opinion as to the proper 
age at which children should become breadwinners. With- 
out scruple, and even in the belief that they were acting 
charitably, the American colonists received from England as 
bound apprentices large numbers of orphans and children of 
the poor, ten to sixteen years of age, some even as young as 
seven years. Laws were passed to keep these boys and girls 
profitably employed, partly for the benefit of the community 
and partly to save them from the dangers of idleness. When 
manufactures arose Alexander Hamilton approved of them as 
rendering children "more useful and . . . more early useful 
than they would otherwise be." ^ 

These colonial traditions have now gone down before a 
standard of working age based on the observed harmful effects 
of premature labor. In 1848 ^ Pennsylvania forbade the em- 
ployment in textile establishments of children under twelve, 
a standard which it the following year ^ raised to thirteen. 

Within the next decade a twelve-year limit was established 
in Rhode Island,^ and a ten-year limit in New Jersey ® and 
Connecticut ; ^ in all three states the law covered manufact- 
ures, and in Connecticut it covered mechanical establish- 
ments also. In none of these states was any proof of age 
required, and enforcement was everywhere very lax. 

The first state to provide a special officer to see that its 

* See, for instance, Kansas, General Statutes 1909, Sec. 5095. 

' Alexander Hamilton, Works, Vol. Ill, p. 207. 

' Pennsylvania, Laws 1848, No. 227. * Ibid., Laws 1849, No. 415. 

^ Rhode Island, Laws 1853, p. 245. « New Jersey, Laws 1851, p. 321. 

'Connecticut, Laws 1856, C. 45. 



It.*;/ 



»> 



334 PRINCIPLES OF LABOR LEGISLATION 

age restrictions on the employment of children were obeyed 
was Massachusetts, in its law of 1867.^ The previous year, 
following a report by a commission on hours of labor, a law 
had been passed forbidding the employment of children under 
ten years of age in manufacturing establishments. The gov- 
ernor at his discretion might instruct the state constable and 
his deputies to enforce the law. It seems, however, that the 
governor did not see fit to give such instructions, and in 1867, 
when the act was amended to cover mechanical establish- 
ments as well as manufacturing, it was made a duty of the 
state constable to detail a deputy to enforce all laws regulating 
the employment of children. 

About this same period the national labor organizations 
became active in demanding the legal prohibition of child 
labor below a minimum age limit. In 1876 laws against the 
employment of children under fourteen years of age were 
advocated by the Working Men's Party at a congress in 
Philadelphia, and about the same time the Knights of Labor 
took a stand for the prohibition by law of their employment 
imder fifteen years of age in workshops, mines, and factories. 
The American Federation of Labor, organized later, indorsed 
the same standard. Since then many influential societies and 
women's clubs, as well as labor organizations, have supported 
and worked for the legal prohibition of child labor. In 1 904 the 
National Child Labor Committee was formed to act as a clear- 
ing house for information on child labor, to investigate condi- 
tions, to educate public opinion, and to promote legislation. 

The result of the work of this national committee and the 
various agencies that have cooperated with it is a large body 
of legislation restricting the employment of children. All 
states now forbid the employment of children in one or more 
kinds of work until they have passed a fixed age limit. The 
fourteen-year minimum age limit was by 1920 established for 
general factory work in all except five states.^ In most states 
document ary proof of a child's age is demanded, and working 

* Massachusetts, Laws 1867, C. 285. 

2 In 1920 New Mexico, Utah, and Wyoming had no minimum age 
requirement for general factory work; in Georgia orphans and widows' 
children between twelve and fourteen might be employed by permission 
of a commission of three local officials; in Mississippi the age limit was 
twelve for boys and fourteen for girls. 






SAFETY AND HEALTH 



335 



permits or employment certificates must be obtained by 
the children and placed on file in the establishment before 
they can be employed therein. 

The age limit in some of the earliest child labor laws ap- 
plied only to cotton and woolen factories and to a few other 
special industries where the evils of child labor were sup- 
posed to be most flagrant. In other laws the prohibition was 
general for all work in "manufacturing or mechanical estab- 
lishments." It is only in comparatively recent years that 
the minimum age limit for employment has been applied in 
the majority of states to mercantile establishments and other 
places of employment as well as to factories.^ In most states 
children under fourteen years of age are now excluded from 
employment in a list of establishments including — in addition 
to factories, mills, workshops, and stores — certain other places, 
such as hotels, restaurants, laundries, bowling-alleys, and 
theaters, where conditions appear to warrant such exclusion. 

Nevertheless, most of the state laws are defective in that 
they fail to cover all the occupations from which children 
should be excluded. In fact, the rapidly changing industrial 
conditions render it practically impossible to draw up a list of 
occupations that will be complete for any length of time, even 
though it is complete at the time the law is enacted. The ten- 
dency of those who are experienced in drafting child labor laws 
now is to use the general term "in any gainful occupation," in- 
stead of a specified list. Agriculture and domestic service are, 
however, frequently exempted from this general prohibition. 

Recognizing that securing protective legislation state by 
state was likely to be a tedious process, which would result 
at best in undesirable diversity of standards, opponents of 
child labor have of recent years turned to federal action. 
Accordingly, in 19 16 Congress enacted a measure which for- 
bade the transportation in interstate commerce of the products 
of factories in which children under fourteen had been em- 
ployed, or in which children between fourteen and sixteen had 
worked more than eight hours a day or six days a week or at 

• 

* The five states named in the preceding footnote had in 1920 no mini- 
mum age for employment in stores except the restriction imposed during 
school hours by the compulsory education law. Florida had a fourteen- 
year limit for factories, but a twelve-year limit for stores. 



I 3 



( 



336 PRINCIPLES OF LABOR LEGISLATION 

night. The same prohibition was applied to products of mines 
employing children under sixteen.' 

One day before the act was to have gone into effect a per- 
manent injunction was secured restraining its enforcement in 
a North Carolina court district. The person who sued out 
the injunction was a poor cotton-mill operative who asked not 
to be deprived of the wages of his two boys. He was repre- 
sented, however, by counsel from New York and from two 
North Carolina cities, and the strongest opposition to the 
measure while before Congress had come from southern mill- 
owners. The United States Supreme Court, to which the 
matter was appealed, held the law unconstitutional as an 
undue extension of the power to regulate interstate commerce.^ 

Undeterred by this reverse, the friends of child labor re- 
striction continued their efforts. In 19 19 Congress again 
enacted the protective standards which had been temporarily 
overthrown two years earlier. Instead of seeking enforce- 
ment through the power to regulate interstate commerce, the 
act was this time based on the taxing power. That is, a pro- 
hibitive tax of 10 per cent, was levied on the annual net profits 
of any concern which employed children in violation of the 
standards named. The same North Carolina federal district 
judge who enjoined the enforcement of the earlier statute de- 
clared the second measure also unconstitutional, and at the 
beginning of 1920 the case was again before the federal Supreme 
Court. As the "power to tax" has repeatedly been held to 
include the "power to destroy," it appeared probable that the 
court would uphold the new act. In so doing it would merely 
be sanctioning the same method for protecting children against 
premature or excessive labor that has already been upheld 
for protecting bankers against undue inflation of the currency, 
dairy farmers against attractively colored oleomargarine, and 
workers in the match industry against phosphorus poisoning.^ 



* United States, C. 432, 64th Congress, ist session. 

« Hammer v. Dagenhart, 247 U. S. 251, 38 Sup. Ct. 529 (1918). 

' Even if laws are declared unconstitutional, competent observers be- 
lieve that the rise of a more far-sighted and scientific spirit among south- 
em industrial managers, and especially the spread of organization among 
the mill population, will soon bring to an end the more flagrant abuses of 
child labor. See, for instance, Broadus Mitchell, "The End of Child 
Labor," The Survey, August 23, 1919, pp. 747-750, 



■ 



SAFETY AND HEALTH 



337 



One of the most important acts of the International Labor 
Conference which convened at Washington, D. C, under the 
covenant of the League of Nations in October, 19 19, was the 
adoption of a draft convention prohibiting the employment 
of children under fourteen years of age in industrial under- 
takings. Because of the low state of industrial standards in 
Japan and India, these countries were given considerable time 
for adjusting themselves to the new requirements. 

The fact that so much progress has been made in the last 
decade in the enactment of child labor legislation, and that 
the fourteen-year limit has been so generally established, 
especially for factory work, does not mean that premature 
employment of children is eradicated. There is serious danger 
that since the most sensational stages in the figlit against 
child labor have passed, public opinion will become apathetic 
and not perceive the inadequacies of laws that may have at 
one time been a great step in advance. Unfortunately most 
of the laws bear the scars of conflicts with short-sighted legis- 
lators as well as with powerful interests who either looked upon 
the employment of children as necessary to their prosperity 
or considered prohibitive legislation an encroachment on 
their business rights. Exemptions — chief of which has been 
the exemption of the "poor widow's" child and children of 
"dependent parents," a relic of the days of the Elizabethan 
poor law — have been the curse of child labor laws. 

In addition to the minimum age of fourteen for entrance 
to general factory work, many states set a limit of sixteen 
years for certain more dangerous processes, and in some 
states an additional two years' maturity is required for en- 
trance to a number of extra-hazardous occupations. The 
first group of occupations may include such employments as 
the cleaning and oiling of machinery, the adjusting of belts, 
the operation of machine saws or of stamping, washing, grind- 
ing, and mixing machines, and the manufacture of lead prod- 
ucts or of compositions containing poisonous acids,^ while in 
the second group is work in mines, at blast furnaces, or on 
railroads, in the outside erection of electric wires, or in the 
manufacture of explosives .^ Some states have established 

* Connecticut, Laws 191 1, C. 123. 
'Arizona, Revised Statutes 1913, Sec. 3127. 



«' 



. 



m 



i 






338 PRINCIPLES OF LABOR LEGISLATION 

minimum limits as high as eighteen or even twenty-one for 
night messenger service or other morally dangerous work.^ 
A growing tendency is manifest to give to state boards of 
health or state labor departments power to add to the lists 
of dangerous and extra-hazardous employments.^ 

Age restrictions for entrance to dangerous occupations have 
been repeatedly upheld as a valid exercise of the police power,^ 
and in some states illegal employment of a child deprives the 
employer of the defenses of assimiption of risk* and con- 
tributory negligence.^ The provision empowering health 
authorities and others to extend the lists of prohibited occupa- 
tions for children of certain ages has been held not to be an 
unwarranted delegation of legislative authority .» 

All the important countries of Europe possess similar grad- 
uated restrictions upon engaging in remunerative employ- 
ment at too extreme youth, and the principle of adding to the 
lists of prohibited occupations by administrative authorities 
is well established. Frequently, also, the authorities are per- 
mitted to allow exemptions from the application of the laws.' 

A serious shortcoming of most of our child labor laws is 
their failure to deal adequately with child labor on city 
streets. We have more or less thoroughly prohibited the pre- 
mature employment of children in factories, stores, and other 
places, but have inconsistently allowed boys and girls of ten- 
der years to be exposed to perhaps a worse moral and physical 
environment in vending newspapers, gimis, and other articles 
on the streets, without sufficient regulation. In 1920 only 
one or two states, as Kentucky and Maryland, had the same 
age limit, fourteen years, for all street trades as for other em- 
ployment. Several states have a fourteen-year limit for boot- 



» New York, for instance, has a twenty-one year minimum for night 
messenger service (Laws 1910, C. 342). 

2 As in Massachusetts, Laws 1913, C. 831, Sees. 4, 6. 

3 Lenahan v. Pittston Coal Mining Co., 218 Pa. 311, 67 AtL 642 (1907). 
< Sterling v. Union Carbide Co., 142 Mich. 284, 105 N. W. 755 (1905)- 

6 Strafford v. Republic Iron & Steel Co., 238 111. 371, 87 N. E. 358 

•Louisville, Henderson & St. Louis R. Co. v. Lyons, 155 Ky. 396, 

7 For extended discussions of this matter see Bulletins No. 80 and 89 of 
the United States Bureau of Labor, on "Woman and Child Wage- Earners 
in Great Britain" and "Child Labor Legislation in Europe," respectively. 



SAFETY AND HEALTH 



339 



blacking and peddling, and a twelve- year limit for newsboys. 
So far only about half the states ' have passed laws regulating 
the employment of children in street trades, and in these the 
prevailing age limit for newsboys is twelve years. Because 
of the additional moral danger to girls the age limit for them 
is usually four or six years higher than for boys. 

Suggestions have frequently been made that a uniform age 
limit for all regular gainful occupations is not scientific, as 
some children are more mature and fit to work at thirteen years 
of age than others are at fifteen. No practical method has 
yet been found, however, of determining the physiological 
age of children, and the age limit will probably always prove 
the most satisfactory standard. The purpose of the minimum 
age is to prevent improper toil before the child has passed 
the most formative period of adolescence, and also to give 
the child a chance for a necessary minimum of education. 
Recent scientific studies of the physical effects of modem in- 
dustry on children, and recent investigations ^ of the educa- 
tional needs of children in industry, indicate that the fourteen- 
year limit is not adequate in either of the above respects. 
There is a strong tendency in the more advanced states to 
eliminate all children under sixteen from industry. Ohio has 
had for several years a fifteen-year limit for boys and a six- 
teen-year limit for girls. A law with a fifteen-year minimtim 
age limit was passed in Michigan,^ chiefly through the efforts 
of the Employers' Association of Detroit. Industries of the 
best type are finding that children under sixteen do not pay. 
Organized labor, also, has taken a determined stand for the 
sixteen-year minimum age during the months in which the 
public schools are in session, and for a sixteen-year compulsory 



* In 1920 legislation on this subject was found in Alabama, Arizona, 
Colorado, Delaware, District of Columbia, Florida, Iowa, Kentucky, 
Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New 
Jersey, New York, Oklahoma, Pennsylvania, Porto Rico, Rhode Island, 
Utah, Virginia, Wisconsin. In Nevada the law merely makes children in 
street employment subject to the control of the juvenile courts. 

2 See, for instance, Child Labor Bulletin, Vol. I, No. i, "Child Labor and 
Education"; United States Bureau of Education, Bulletin 1913, No. jp, 
"German Industrial Education and Its Lesson for the United States," 
Holmes Beckwith; Seattle Children in School and in Industry, published 
in 191 5 by the Seattle, Wash., Board of School Directors. 

'Michigan, Laws 1915, No. 255. 



I 



/ 



340 PRINCIPLES OF LABOR LEGISLATION 

education limit. Educators are generally accepting this as 
the standard that must eventually be adopted. 

(b) Physical Requirements. While it may be impracticable 
to substitute a physiological for the ordinary chronological 
age test, it is nevertheless true that physical development as 
well as age should determine the child's eligibility for em- 
ployment. So far state laws have not designated any stand- 
ard physical requirements, but have merely contained the 
rather meaningless provision that children must be physically 
fit. A physical examination of all applicants for certificates 
was in 1920 required by som« dozen leading states.^ In sev- 
eral other states the official granting employment certificates is 
authorized to ask for the physical examination of the appli- 
cant if he considers him of doubtful health and strength. 

Because of the lack of definite standards these examinations 
depend for their value almost entirely on the physician who 
happens to make them. In New York City, for instance, the 
physical examination of applicants for certificates is well 
standardized. Blanks are used in the examination of each 
child which include not only the height and weight, but a 
test of the eyesight and hearing, and an examination of the 
condition of the teeth, the heart, the lungs, throat, and nostrils, 
and the general physical condition. The same blanks are 
used throughout the state, but in smaller towns they are usually 
very poorly filled out. 

If the physical examination is to be a real test of the child's 
fitness, the medical examiner must know the prospective place 
of employment and have a knowledge of the conditions and 
processes in the various industries in which children are em- 
ployed. Under the English law, accordingly, the certifying 
surgeon must examine the child in the factory where he is 
entering employment, and if the child changes employment he 
must be re-examined in the same manner.^ Wherever medical 
examination of children in the public schools is extensively 
developed, the records of the child's physical progress should 

» Connecticut, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, 
New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode 
Island. The Massachusetts act (Laws 1906, C. 502) was the first of this 
type. 

2 Factory and workshop act, 1901 (i Edw. 7, C. 22, Sec. 64 (3).) 



y r' 



SAFETY AND HEALTH 



341 



be kept in such form that they can be compared with the 
examination at the time the child proposes to leave school. 
In smaller cities the simplest arrangement is for the school 
medical examiner to make the examinations of children apply- 
ing for certificates. In New York state, where certificates are 
issued by the boards of health instead of by the public schools, 
the examinations are, of course, supposed to be made by the 
health officers, or under their supervision, and there is seldom 
any cooperation with the school examiners. 

A single examination at the time of application for em- 
ployment certificates will not, however, even when it has been 
put on a more scientific basis than at present, be sufficient 
protection for the health of working children. In order that 
children may not be- injured by the work they do, examina- 
tions must be repeated periodically. New York has recog- 
nized this fact by establishing a corps of medical examiners 
under the department of labor, who have authority to exam- 
ine children in any industry, and on their recommendation 
the employment certificate of any child found to be unfit for 
the work he is doing is canceled. This provision will prob- 
ably be embodied in the laws of other states as public opinion 
gradually comes to realize the necessity of safeguarding the 
child's health after he has entered industry in the same way 
as is now being done to a large extent up to the time that he 
leaves school. 

(c) Educational Requirements. Merely to compel the child 
to go to school until it is fourteen years of age does not guar- 
antee the attainment of any definite minimum of education. 
Hence a number of states forbid the employment of children 
who do not come up to certain standards of knowledge. 
These standards, however, vary considerably. About half 
the states require only that applicants for employment certif- 
icates be able to read and write EngHsh. Illinois requires liter- 
acy, but not necessarily in English. Several states require 
the attainment of certain grades in the public schools, or 
equivalent instruction. Completion of the eighth grade is 
now the standard in nearly half the states. 

Several states require attendance at school for a minimimi 
period either during the year previous to the birthday at which 
the child becomes old enough to go to work, or during the 




f 



342 PRINCIPLEvS OF LABOR LEGISLATION 

year previous to the time the certificate is issued. This 
required period of attendance may vary from the entire 
school year to twelve weeks or less. Instruction in certain 
specified subjects, usually reading, writing, spelling, geogra- 
phy, and arithmetic through common fractions, is required in 
some states. 

The provision that children who have been granted "work- 
ing papers" but are under sixteen years of age shall attend 
school unless regularly employed is common, but little atten- 
tion has been paid to its enforcement. Once an employment 
certificate has been secured the child is usually forgotten by 
the school authorities, unless the law requires that the certifi- 
cate be sent direct to the employer and returned by him to 
the issuing office when the child's employment terminates, 
the certificate at no time becoming the property of the child. 
The principal benefit of such a provision is that it tends to 
check children from leaving school to enter temporary *' blind 
alley" jobs. 

Much of the time of the child under sixteen who drifts 
from one dull, monotonous job to another is wasted, as far 
as education and training are concerned. Consequently the 
completion of the eighth grade seems little enough schooling 
to require of children who go to work under sixteen. 

(d) Special Problems in Enforcing Restrictions on Child Labor. 
Difficult as it has been, and still is, to place comprehensive 
child labor laws on the statute books, it is even more difficult 
to build up their effective administration. 

The principal agencies for the enforcement of child labor 
laws are the departments of labor, the school authorities, and 
in some states the boards of health. Probation officers and 
private child welfare agencies may sometimes aid. In some 
states special child labor inspectors are appointed; in fact, 
factory inspection has usually begun with the enforcement of 
the child labor law before other labor legislation was estab- 
lished. In all cases, however, enforcement rests primarily 
with the factory inspection organizations. 

Few, if any, states have an adequate corps of inspectors,* 
and in the southern states, where the child labor problem is 



SAFETY AND HEALTH 



343 



* See .Chapter IX, "Administration," p. 451. 



most serious, the provision for enforcement is most meager.^ 
The experience of state after state has demonstrated that 
without official inspection child labor laws are dead letters. 

The issuance of employment certificates is the first step 
in the administration of the minimiun standards for entrance 
to industry. In most states where certificates are required 
they are issued by the local school authorities. In New York 
they are issued by the boards of health, which has proven 
very unsatisfactory for the state as a whole, as the health 
officers are for the most part poorly paid and busy with their 
other duties, and look upon the issuing of certificates as a 
tedious task thrust upon them without compensation. In a 
very few states no employment certificates are required, the 
affidavit of the parent being accepted as proof of age.2 

Under the prevailing method of issuance through the school 
authorities uniformity is secured by the use of standard blanks 
throughout the state, by regular monthly or more frequent 
reports either to the commissioner of labor or to the state 
superintendent of education, and by a certain amount of 
centralized supervision on the part of these officials. This 
method is the most practical because the school office is the 
most convenient place for the children and their parents to 
go to obtain the certificates; because the local school authority 
knows the child through his record or through personal con- 
tact, and thus there is less likely to be falsification in regard 

* In North Carolina the commissioner of labor statistics had, until 1919 
no power to inspect if the employer chose to prevent him. In Alabama 
the enforcement of the child labor law has been entrusted to the state 
pnson mspector, who must divide his time with the inspection of jails and 
almshouses. An mvestigation made in Mississippi by the National Child 
l^abor Committee m 191 4 disclosed in nearly every factory in the state 
wholesale violations of the law passed in 1912, which by way of enforce- 
ment merely provided that the county sheriffs were to inspect" the fac- 
tones^^ at least once each month," and the county health officers to in- 
spect at least twice each year." Only two of these local officials were 
tound who had ever been inside the places they were supposed to inspect, 
and not a single one knew the provisions of the law. Those who had paid 
any attention at all to it had contented themselves with naively asking 
ttie owner of the mill if he was living up to the law. (See Child Labor 
Bulletin^ \o\ II No. 4, February, 1914, "The Majesty of the Law in 
Mississippi, Edward N. Clopper.) Following the exposure the Missis- 
sippi legislators finally passed a law providing a factory inspector 

» In 191 5 there were seven states in this class. By 1920 they had been 
reduced to two — Mississippi and Wyoming. 



4 
I 



( 



344 PRINCIPLES OF LABOR LEGISLATION 

to age; and because the local school authority is likely to be 
much more interested in keeping the child in school and will 
make more of an effort to point out the inadvisability of al- 
lowing it to leave for some temporary and unnecessary em- 
ployment. The enforcement of the compulsory education 
law, also, is so closely connected with the enforcement of the 
child labor law that the two should be coordinated under 
the school authorities in each community. The same sets 
of records are necessary for the issuance of certificates and 
for the enforcement of the compulsory education law. The 
school census, the record of the child's age on entering school, 
and its progress in school are equally important to the enforce- 
ment of both laws. Applicants who have been refused employ- 
ment certificates should be reported at once to the school at- 
tendance department in order that they may be returned to 
school, and the names of all children to whom certificates have 
been granted should be reported to the principals of the schools. 
In the regulation of children's work in street trades, badges to 
be worn conspicuously and renewed annually have been found 
essential to enforcement, and the responsibility for adminis- 
tration rests chiefly with the educational authorities. 

Cooperation between the child labor inspectors and the 
schools is necessary that both may discharge their respon- 
sibility to the best advantage of the child. A careful issuance 
of employment certificates and a thorough enforcement of 
the compulsory education law make the work of the labor 
inspector much easier. It is desirable, furthermore, that 
truant officers have the power to inspect establishments where 
children arc employed, and they should be the local represent- 
atives of the state child labor inspectors, reporting to them 
all violations and aiding them in getting evidence to^ bring 
prosecutions. The actual presentation of evidence in the 
courts should always be done by the state inspector, who is 
free from local pressure. 

The important provisions of what has been called a model 
law in regard to employment certificates are as follows : ^ 
No child under sixteen should be engaged unless the child 
presents to the employer an employment certificate, which 

^ Practically the provisions of the Ohio law (General Code, 1910, Sees. 
7765-7771)- 



\ ^ 



SAFETY AND HEALTH 



345 



should be kept on file during the child's employment and re- 
turned to the issuing office when the employment terminates. 
These certificates should be issued only by the local super- 
intendent of schools, or by some one designated by him in 
writing, and should be given only after the following docu- 
ments have been received and placed on file: 

(i) The pledge of the employer that he expects to employ 
the child and will retum the certificate to the issuing office 
as soon as the child leaves his employ. 

(2) The child's school record, stating the age, ability to 
read and write, and school grade, signed by the principal of 
the school that the child last attended. 

(3) Evidence of age, in the following order: (a) birth cer- 
tificate; (b) baptismal record or passport; (c) school record 
or other doomientary evidence; (d) in the absence of anything 
else, affidavit of the parent, with one or two disinterested 
citizens. The child should personally appear before the issu- 
ing officer for examination, and the officer should satisfy him- 
self that the child is at least fourteen years of age, is able to 
read and write English, and has had a course of instruction 
equivalent to seven yearly grades in the public schools. 

(4) A certificate from the school physician, board of health, 
or a licensed physician appointed by the board of education, 
in the order named, showing that the child is physically able 
to do the work for which it is to be employed. 

The certificate should be transmitted by the issuing oflScer 
to the employer, and should not at any time come into pos- 
session of the child, to be used as a license for idleness. The 
blanks should be furnished by the state commissioner of labor, 
to whom should be sent monthly a list of the names of chil- 
dren for whom certificates have been issued, returned, or re- 
fused. Such lists should give the names and addresses of 
the prospective employers and the nature of the occupations 
in which the children intend to engage. Factory inspectors 
and^ truant officers should be empowered to demand that 
certificates be obtained to prove the age of children apparently 
under sixteen who claim to be over that age.^ 

^ 1 The federal Children's Bureau publishes from time to time thorough 
mvestigations of the administration of child labor laws in various states, 
pointing out the strength and weakness of the laws. 




f 



346 PRINCIPLES OF LABOR LEGISLATION 

Even more for the sake of uniformity in enforcement than 
for uniformity in restrictions on child labor, federal legislation 
is needed. The plan of the law on this subject enacted by 
Congress in 19 19 was to place the enforcement in the hands 
of the federal internal revenue office, whose inspectors would 
be free from local bias or pressure. The work of these in- 
spectors, it is believed by those who promoted the bill, will 
not obviate the need of state factory inspectors or of interest 
in the enforcement of the law by local school officials and 
others, but it will support the local authorities and aid them 
in resisting any influences which might be brought to bear 
to prevent them from prosecuting for violations. Advocates 
of the measure believe, also, that the federal courts will be 
more likely to find against a man who violates a federal law 
regarding the employment of children than the local courts 
are to convict for violation of state laws. This would be an 
important gain, because it is not at all an uncommon thing 
for the state factory inspector to have a case dismissed by 
the judge after the most careful evidence has been presented, 
merely because the judge does not see that any great injustice 
has been done the individual child. 

For the better enforcement of child labor laws cooperation 
between all the different agencies that are interested is es- 
sential. The standards which have been and will be 
established in regard to the entrance of children into in- 
dustry will never be thoroughly enforced until the problem 
of administration is taken up with the same enthusiasm 
and persistence which have marked the campaigns for legis- 
lation. 

b. Women. The exclusion of women from various branches 
of industry is based primarily on their inherently weaker re- 
sistance to certain health dangers, and sometimes upon moral 
grounds or upon their special need for protection at certain 
periods, as just before and after childbirth. Legislation to 
this end is much less extensively developed in America than 
in Europe. 

(a) Prohibited Employments. In America almost all laws 
forbidding the employment of women in designated occupa- 
tions or under designated conditions relate to work in mines 
and saloons. Work in mines is forbidden to women in most 



SAFETY AND HEALTH 



347 



of the mining states,^ and work in saloons (except by mem- 
bers of the family) in about fifteen states,^ but in neither 
of those occupations has the problem of female labor been as 
serious as it is in England and in some other European coun- 
tries where similar prohibitions are in force. In addition, a 
few scattered provisions of various sorts are found. Two or 
three states have forbidden the employment of women in 
cleaning moving machinery.^ Arizona forbids the work of 
women "in any capacity " in which they must remain standing 
constantly,* and New York and Ohio forbid women to oper- 
ate certain kinds of emery and other polishing wheels.^ New 
York also forbids the employment of women coremakers in 
foundries if the cores are baked in the room where they are 
made.^ 

In Europe the evil effects of certain kinds of work are mucii 
better known than in this country, and it is well recognized 
that even the most careful regulation of working conditions 
in these occupations would not suffice to prevent injury to the 
health of women employed therein. Accordingly, European 
legislation forbids the work of women in a fairly wide list of 
occupations, most of which involve the presence of dusts, 
fumes, vapors, gases or substances of a poisonous or clearly 
harmful character. Among women workers in white lead, 
for instance, it was discovered that a serious derangement of 
the reproductive organs frequently occurred, and that the per- 
centage of miscarriages and still-births among married women 
was exceedingly high. Therefore, in most European countries, 
and also in Argentina, women are forbidden to work in the 
dangerous processes in which this poison is used. The Inter- 
national Labor Conference of 19 19 recommended the exclusion 
of women, as well as of children under eighteen, from work in 

] Alabama, Arizona, Arlcansas, Colorado, Illinois, Indiana, Maryland, 
Missouri, New York, Oklahoma, Pennsylvania, Utah, Virginia, Wash- 
ington, West Virginia, Wisconsin, Wyoming. 

^ Connecticut, Idaho, Iowa, Louisiana, Maryland, Michigan, Missouri, 
Montana, New Hampshire, New Mexico, New York, Ohio, Texas, I'tah, 
Vermont. 

^ Louisiana, Minnesota, West Virginia. 

* Arizona, Revised Statutes 1913, Sec. 31 15. 

' New York, Laws 1913, C. 464; Ohio, General Code 1910, Sec I027; 
15 (as amended by Laws 191 1, p. 428). 

• New York, Laws 191 3, C. 464. 



348 PRINCIPLES OF LABOR LEGISLATION 

a number of dangerous lead trades. In France females are 
forbidden even to enter a place in which any one of forty-six 
especially dangerous processes is carried on, and nearly one 
hundred additional occupations are forbidden except under 
special protective conditions. Similar lists are found in the 
more important European countries and even Spain long 
backward in social legislation, has forbidden the emplo^roent 
of women and minor children in a long list of occupations. 
While it IS true that women in foreign countries often engage 
in work done only by men in this country, yet many women 
are undoubtedly at work here in industries so dangerous to 
their health that an extension of prohibitory legislation is 
urgently needed. 

(6) Childbirth Protection. It was not until 191 1 that the 
prohibition of the industrial employment of women for a 
stated period before and after childbirth became the subject 
of legislation in America. Such statutes were passed by 
Massachusetts in 1911, New York in 1912, Connecticut and 
Vermont m 19 13, and Missouri in 19 19. The Massachusetts 
act is a representative one. It forbids "knowingly" employ- 
mg any woman in "a manufacturing, mechanical, or mercan- 
tile establishment " within two weeks before or four weeks after 
childbirth.^ 

The desirability of such additional protection for working- 
women at the time of childbirth has been recognized by most 
European countries and by several outside of Europe. The 
prohibited period is generally similar to that found in America, 
from two to four weeks before and from four to six or eight 
weeks after confinement. The International Labor Confer- 
ence m Washington in 19 19 drew up a draft convention pro- 
hibiting industrial employment of women for six weeks after 
childbirth, and pennitting them to leave work, if they wished 
to, six weeks before confinement. European laws are rendered 
more effective than the American by their frequent connec- 
tion with provisions for maternity insurance.^ For instance, 
under the German system of health insurance, a woman 
worker is paid benefits of half-wages for two weeks before and 
six weeks following confinement, or longer if she is unable to 

* Massachusetts, Laws 191 1, C. 229. 
2 See "Maternity Insurance," p. 422. 



SAFETY AND HEALTH 



349 



! 



return to work at the end of that time. Such insurance is 
needed partly to make up for the income loss during the en- 
forced period of idleness, and may also be an important aid in 
the enforcement of the law. The necessity for such law in 
effective form is, however, undoubtedly less in this country 
than abroad, where the emplo5anent of women with young 
children is much more frequent. 

c. Men. Legal regulations for the exclusion of men from 
dangerous employments are never of universal application, 
as they are in the case of children and women, but are limited 
to certain classes or groups of individuals who must be ex- 
cluded on definite grounds, usually ascertained by examina- 
tion. ^ The grounds of exclusion may be either physical or 
technical. Although the distinction does not always hold, 
physical requirements are in the main intended to protect 
the worker who is debarred, while in the case of technical' 
qualifications the protection of fellow-workmen or of the gen- 
eral public is an added if not the main consideration. Physi- 
cal qualifications, also, are usually concerned with health; 
technical qualifications with safety. 

^ (a) Physical Qualifications. Physical qualifications estab- 
lished by law are of four kinds: (i) reasonable immunity from 
the trade malady characteristic of the employment; (2) free- 
dom from a trade malady contracted in the course of em- 
ployment; (3) freedom from a contagious disease which might 
be passed on to other workmen or to consimiers of the product; 
and (4) freedom from physical defect of such nature as to 
interfere with the proper performance of duty. It will be 
noted that the first two qualifications look toward the health 
of the workman himself, and that the last two look mainly 
toward the health and safety of other persons. 

The qualification of immunity from a particular occupational 
disease was found in 1920 in only four American states, but is 
more common abroad. The New York,i New Jersey,^ and 
Pennsylvania » statutes and the Massachusetts administra- 
tive order regulating work in compressed air require that ap- 
phcants m ust be found physically qualified by a physician 

^ New York, Laws 1909, C. 291. 
2 New Jersey, Laws 1914, C. 121. 
'.Pennsylvania, Laws 1917, No. 364. 





( 



^ 



350 PRINCIPLES OF LABOR LEGISLATION' 

paid by the employer, and these laws also exclude persons 
addicted to the excessive use of intoxicants. In Europe 
examinations for entrance to compressed-air work are re- 
quired in France and in Holland, the latter country specify- 
ing a long hst of ailments, such as obesity, heart or lung dis- 
eases, and affections of the nose and ears, any one of which 
debars from the work. Austria bars from work in paper-mills 
all workers with open wounds, persons with delicate respira- 
tory organs, and consumptives. Still more common is the 
requirement of a medical certificate of fitness as a condition 
of entering the more dangerous lead trades, which is found in 
Austria, France, Germany, Great Britain, and Russia. Ger- 
many specifically prohibits the employment in these trades of 
applicants with lung, kidney, or stomach trouble, a generally 
weak constitution, or an addiction to alcohol; France, of 
' those who exhibit symptoms of lead poisoning or of any 
complaint likely to be dangerously aggravated by plumbism. 
Belgium also forbids the employment of alcoholics m the 
white lead, lead oxide, or lead paint trades. 

It is obvious, however, that merely debarring from entrance 
to an unhealthy trade those demonstrably susceptible to its 
dangers is insufficient protection. The worker's real power of 
resistance to a specific hazard often cannot be determined 
until he has been exposed to it, and if he begins to show 
symptoms of succumbing he cannot be too quickly removed. 
Hence arises the necessity for the second qualification, free- 
dom from a trade malady contracted in the course of em- 
ployment. I. 1 • 

Most common occupational diseases are of such slow in- 
ception that a capable physician can detect them in the early 
stages before their cumulative effects have become serious. 
To make sure, therefore, that the originally healthy employee 
is in fact successfullv resisting the risk with which he is sur- 
rounded, the initial examination, when it is given, must be 
supplemented by periodical re-examinations at intervals grad- 
uated according to the degree of risk. Sometimes penodic 
examinations are required even when there are no restnctions 
upon entrance to the trade. ^ . 

Such is the case with the monthly examinations required 
imder the "lead laws" of the important lead-using states. 






SAFETY AND HEALTH 



351 



The Ohio ^ and Pennsylvania ' laws apply to the manufacture 
of certain of the more poisonous lead salts, such as white 
lead, red lead, and arsenate of lead (Paris green), while the later 
New Jersey ' statute covers also the manufacture of pottery, 
tiles, or porcelain-enameled sanitary ware in so far as lead is 
used. 

In all three of these states the physician who discovers a 
case of lead poisoning must report it not only to the state 
departments of labor and of health, but also to the employer, 
who after five days must not continue the "leaded" employee 
in a dangerous process nor return him thereto without a 
physician's written permit."* 

Provision for regular re-examination is also found in the 
three American compressed-air laws already mentioned. Under 
these the examination must be repeated after the first half- 
day's work, on returning to work after ten days' absence 
from any cause, and after three months' continuous employ- 
ment, and workmen who have ceased to be qualified must 
be excluded. 

In the more dangerous lead trades workers are subject to 
regular examination in nearly all European countries. Eng- 
land and Germany, moreover, require examinations both in 
alkali chrome works, where corrosions of the mucous mem- 
brane are common, and in rubber vulcanizing works, where 
there is danger from the noxious gas bisulphide of carbon. 
France requires similar examinations in compressed-air work. 
The frequency of examination varies from once a week in 
the British white lead industry, to every six months among 
German painters, although once a month, as in the American 
lead trades, is the most usual period. In the Netherlands 
stone masons are entitled to medical examination at the em- 
ployer's expense once a year. In order that the advantages 
of cumulative experience may not be lost, a factory record of 
the result s of medical examinations, especially if they result 

\ P.^^o. Laws 1913, p. 819. 2 Pennsylvania, Laws 1913, No. Sqi. 

« New Jersey, Laws 1914, C. 162. ^ 

* Similar laws in Illinois (Laws 191 1, p. 330) and Missouri (Laws ion 
p. 402) cover wider ranges of related industries, including zinc smelting 
and work with arsenic, brass, mercury, and phosphorus, but do not re- 
quire the removal from danger of workmen who show symptoms of the 
resultant diseases. 



352 PRINCIPLES OF LABOR LEGISLATION 

in findings of disease, is nearly always required, and must 
iKjuallv be kept by the examining physician.' 

The third physical qualification, absence of contagious dis- 
eaJeis applied occasionally in bakeshops = and m other food 
establishments,' while the fourth, freedom from Phys'cal de- 
fect which might interfere with proper performance of duty. 
smrntLed in a few states which require an examination 
of ™ Uroad enlployees for color-bHndness or other defective 

'''%\echnical Qualifications. Par more numerous than the 
examinadons to test an adult workman's fitness for a given 
:::::;attn upon physical, or health, grounds - those^i^ 
quired in nearly all states for the licensing ^{^^l}^^^^ 
on certain trades after a test of expenence, skill, or general 
education Laws for the exa^mnation and registration of 
barte ° horseshoers,' plumbers,' electricians,' movmg-picture 
nmS; operators,' chauffeurs,'" r^^^-^^'^'j^^f^^^^^^^^ 

=ra;;'dSff;:^Siyn;rX^^^^^^^^^ 

physician, and dat^ f "AJ^T correctness of the record, and must show it 
?X facSr- midTcll in's^'SS^^rdem^ The Austrian health 

'^'^ fo°HnsrncTcoT<SttSf General Statutes .90.. Sec. ^570. 

: ^oi^rple.^Shi^?b^en^er^l'c•<^i9^5ee. ..548. 

:S in "^ZZp.^^ in Hawaii Th- Uws^have b^^^ 
^u^d'Sf in=t wStTi e^UiiirnTtV^^Jrin^^rUton on grounds o. 
P^'lJSu" .9"o inTwTniy-four states, the District o£ Columbia, and 

Porto Rico. 

8 Found in 1920 in three states. 

.: K in lllo Jn ttnf^three states and in the Philippine Islands. 

^fa^Fou'nTin 1920 in the United States, eight states, and the Philippine 
'Is in \llo S K^^^Connecticut, Laws X911, C. 86. 



SAFETY AND HEALTH 



353 



lie, and need only be mentioned.* More closely related to the 
subject are technical examinations for miners and for firemen 
and engineers in charge of stationary boilers. 

Statutes requiring the examination and registration or 
licensing of certain classes of coal mine employees exist in 
practically all of the important mining states.^ Managers, 
foremen or bosses, fire bosses, mine-examiners, and hoisting 
engineers are the employees for whom licenses are usually 
required, but some of the newer laws cover all miners, each of 
whom, however, is allowed one unlicensed apprentice.^ Can- 
didates must present affidavits attesting their good character 
and sobriety, must have a specified number of years' experi- 
ence, must be residents of the state, and must pass the exami- 
nation prescribed by an examining board. The increase of 
foreign-bom workmen among the miners is reflected by the 
growing number of states which require ability to read and 
speak English.* A fee ranging from $1 to $5 is charged for 
the examination and license. The examining boards are com- 
posed of from three to five men, one of whom is usually a 
state mine inspector, the others being miners and mine- 
owners or superintendents in equal number. 

Finally, in a niunber of states ^ and in the District of Colum- 
bia no one may serve as fireman or engineer in connection with 
a stationary boiler who has not been found qualified 'by a 
state or local examining board. Moral character and tem- 
perate habits, one to three years' experience, and a minimum 
age limit are specified in a few instances, and the license is 
generally revokable for negligence, intoxication, or violation 
of law or regulations. 

Becaus e they fear loss of employment if foimd to be suffer- 

» Similar in intent is the Wisconsin Industrial Commission order of 
1917. fixing standards of technical skill for bricklayers as a prerequisite 
tor giving a certificate to apprentices in the trade. 

T, ' Such statutes existed in 1920 in the fifteen states of Alabama, Colorado, 
Illinois Indiana, Iowa, Kentucky, Missouri, Montana, Ohio, Oklahoma, 
PCTinsylvania, Tennessee, Utah, Virginia, and Wyoming. 

« Illinois, Laws 1913, p. 438, Sec. i. 

*See, for example, Kentucky, Laws 1914, C. 79, Art. XVI, Sec. i. 
In 1920 hcenses for stationary firemen and engineers (exclusive of 
those m mines) were required in the eleven states of Georgia, Maine, 
Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New 
Jersey, Ohio, and Pennsylvania. Many cities also require licenses under 
city ordinances. 

23 



{ 



V 






354 PRINCIPLES OF LABOR LEGISLATION 

ing from some disqualifying ailment, workmen have at times 
protested against medical examinations conducted by the em- 
ployer. Aside from possible abuse of such information, how- 
ever, the advantages to be gained by the workman through 
exclusion or timely removal from a disease-breeding occupation 
wovdd outweigh the hardship due to temporary loss of wages 
while awaiting recovery or securing other work. Even the 
wage loss, when exclusion is due to illness, can be in large part 
taken care of by the extension of workmen's compensation 
to embrace occupational diseases and by the institution of 
systems of universal health insurance.^ For the physician, also, 
the practice of examining large bodies of men at the place of 
employment will lead to added insight into the trade causes 
of disease, an insight which unfortunately is as yet only 
rudimentary. In any compulsory system of medical exami- 
nation the physician should be employed by the state. 



{2) Prohibition of Substances or Instruments 

The most notable example of the application of the method 
of prohibition to a dangerous substance is the world-wide 
banishing of poisonous phosphorus from the match industry. 
Within eleven years after the commercial introduction of the 
phosphorus match in 1827 the disease known as " phossy jaw, " 
or phosphorus necrosis, was attracting the attention of govern- 
ment investigators. Various efforts to eliminate the disease 
by regulation having signally failed, Finland in 1872 forbade 
the use of white phosphorus in match factories, and similar 
action was taken by Demnark in 1874. In France, where 
match-making is a government monopoly, the profits from the 
industry were wiped out by sickness and death claims until 
a harmless substitute was discovered and the dangerous in- 
gredient prohibited in 1897. Other countries followed, and in 
1906, on account of the difficulty of eliminating poisonous phos- 
phorus in countries with an important export trade, the Inter- 
national Association for Labor Legislation secured an inter- 
national conference at Berne which resulted in 1906 in the 



SAFETY AND HEALTH 



355 



i 



* See "Health Insurance," p. 415. 



unique expedient of an international convention * providing 
for the absolute prohibition of the manufacture, importation, 
or sale of matches made from white phosphorus. This treaty 
was signed at once by Denmark, France, Germany, Italy, 
Luxemburg, the Netherlands, and Switzerland, and a few 
years later by Great Britain, Spain, and ntimerous colonies.^ 
Canada and Mexico also, without becoming signatories to the 
treaty, have prohibited the poisonous substance in the match 
industry. A recommendation that nations which had not 
yet done so should adhere to this Berne convention was 
adopted by the International Labor Conference at Washington 
in 1919. 

In the United States the question was first given national 
prominence in 19 10 by the report of a federal investigation.^ 
Two years later, in April, 191 2, Congress placed a prohibitory 
tax of 2 cents a hundred on matches containing white phos- 
phorus, and prohibited their import or export."* The power of 
internal revenue taxation which Congress had previously exer- 
cised for the benefit of bankers and farmers was thus for the 
first time used for protecting the health of wage-earners. 

Against only one other industrial substance — lead — has 
the drastic method of prohibition been invoked, and in this 
case the prohibitory legislation is found only in Europe. 
Austria was first to act, forbidding in 1908 the use of lead in 
all paints, colors, or cement used for interior work, and the 
same year the Swiss administrative departments were ordered 
to forbid the use of white lead in painting carried on in their 
behalf. The most thoroughgoing action in this regard, how- 
ever, has been taken by France, which in 1909 declared that 
after July 20, 1914, the use of "white lead, of linseed oil mixed 
with lead, and of all specialized products containing white 
lead, will be forbidden in all painting, no matter of what 
nature, carried on by worldng painters either on the outside 

^ For text of this convention see Bulletin of the International Labor 
Office, Vol. I, 1906, pp. 275-276. 

* For complete list see table, Bulletin of the International Labor Office, 
Vol. VII, 1912, following p. 503. 

' United States Bureau of Labor, Bulletin No. 86, January, 1910, 
"Phosphorus Poisoning in the Match Industry," John B. Andrews, 
pp. 317146. 

* United States, Laws 1911-1912, C. 75. 




I 



356 PRINCIPLES OF LABOR LEGISLATION 

or on the inside of buildings." * Belgium, France, and Ger- 
many also forbid the removal of lead paint by any dry rub- 
bing or scraping process. 

A few prohibitions apply not to substances, but to instru- 
ments of work. One of these is contained in the Massachusetts 
statute intended to protect textile mill operatives from "the 
kiss of death." This law, in order to prevent the transfer 
from worker to worker of tuberculosis and other infections, 
prohibits the use of any form of shuttle "in the use of which 
any part of the shuttle or any thread is put in the mouth or 
touched by the lips of the operator." ^ Contagious diseases 
among glass-blowers are guarded against in France and Portu- 
gal by prohibitions against the use by more than one person 
of the same blowpipe. 



1 



3. Regulation 

The method of regulation, in the prevention of occupational 
accident and disease, as in other social problems, is based on 
the principle of toleration within limits. The majority of the 
people may believe that certain dangerous machines or proc- 
esses are so necessary a part of our industrial life that their 
prohibition is at present undesirable or at least impracticable. 
In dealing with industrial accidents and diseases the adoption 
of this principle leads in the work-places to the installation of 
machine guards, fire-escapes, dust and fume removal systems, 
separate wash-rooms and eating-rooms; and for the work- 
people to the limitation of working hours. As the latter point 
has been considered in the chapter on "Hours of Labor" 
only the regulation of work-places need be treated here. 

Furnishing a reasonably safe place in which to work is plainly 
the duty of the employer, and was so recognized under the 
common law and by the employers' liability statutes. Not 
all industrial managers, however, are equally watchful and 



* United States Bureau of Labor, Bulletin No. p5, July, 191 1, p. 180. 

2 Massachusetts, Laws 191 1, C. 281. A similar statute was enacted in 
Rhode Island (Laws 1918, C. 1632;, while Connecticut (Laws 1919, C. 
27) sought to accomplish the same hygienic object by requiring mill 
operators to furnish weavers with appliances making it unnecessary to 
touch thread or shuttle with the lips. 



m 



SAFETY AND HEALTH 



357 



energetic, even if all were equally alive to their social respon- 
sibility in the matter, and hence has arisen the need of stand- 
ards, drafted and enforced by public authority, which will 
throw about the work-people the necessary protection. So 
diversified are the various branches of industry and the acci- 
dent and disease hazards in each that separate codes have 
grown up about them. These codes deal in the main with 
(i) factories and workshops, (2) mines and timnels, and (3) 
transportation. 



(i) Factories and Workshops 

Modifying to meet its own conditions a mass of legislation 
already existing in Great Britain, Massachusetts passed on 
May II, 1877, the first American law requiring factory safe- 
guards. This pioneer law touched on nearly all of the points 
now covered by our most advanced statutes for the prevention 
of factory accidents. It provided for the guarding of belting, 
shafting, and gearing, prohibited the cleaning of moving ma- 
chinery, required elevators and hoistways to be protected, 
and called for sufficient means of egress in case of fire. Prac- 
tically every state in the union now has a factory and work- 
shop act prescribing minimum conditions of safety. 

a. Machine Guards. The point perhaps most frequently 
dealt with is safeguarding of machinery. Mechanism for the 
transmission of power, like belting, shafting, and gearing, 
as well as active parts of machines, such as saws, planers, 
mangles, and emery-wheels, must usually be securely guarded, 
but if this is not considered possible it is sometimes required 
that notice of the danger be conspicuously posted. Set-screws 
or other projections must be countersunk beneath the level 
of the shaft or otherwise guarded, while shafts and belts, and 
floor openings through which they pass, must be cased or 
railed off. A statute found only in the great textile state of 
Massachusetts requires looms to be provided with guards 
which will prevent injury from flying shuttles.* It has often 
but not uniformly been held by the courts that failure to pro- 
vide the required safeguards is negligence per se^ and that 

^ Massachusetts, Laws 1909, C. 514, Sec. loi. 

* Davis V. Mercer Lumber Co., 164 Ind. 413, 73 N. E. 899 (1905). 




i 



3s8 PRINCIPLES OF LABOR LEGISLATION 



J:i 



the worker does not assume the risk of the employer*s negligent 
disregard of duty, even though he is aware of it.^ Many safe- 
guards can be applied best and most economically during the 
original building of the machine, and Minnesota has pro- 
hibited the manufacture or sale of mechanism with danger 
points unguarded.^ The same idea is found in the laws of 
some European countries, and a growing mmiber of American 
dealers are acting upon it without legislative compulsion.' 

It is not sufficient, however, for a safeguard to be attached 
to a machine. If the guard is to do its work it must be actually 
used. A number of states have therefore passed provisions 
forbidding any person to move, displace, or destroy any safety 
device except under rules established by the employer, and 
some specify immediate repairs as the only cause for which a 
machine guard may be removed during the active operation of 
the machine. A related clause forbids employees to operate 
or tamper with machines with which they are not familiar or 
which are not connected with their regular duties. 

In case of accident it is important that the operative be 
able to stop the machine at once. It is commonly required, 
therefore, that shafting be fitted with tight and loose pulleys, 
and that belt-shifters or poles be supplied for shifting the 
belt quickly and safely from one to the other. Some states 
require friction clutches for stopping machinery, and in ad- 
dition to all these means of safety Illinois, among other states, 
requires speaking-tubes, electric bells, electric colored lights 
or other means of communication between the workroom and 
the engine-room. Other regulations governing moving ma- 
chinery forbid cleaning or repairing it while in motion, and 
overcrowding. Closely related to the foregoing provisions 
are those dealing with covers or other safeguards on such 
stationary equipment as vats and pans. 

Among other provisions against accident are frequent re- 
quirements that stairs must be properly screened at sides and 
bottom, must have rubber treads if thought necessary by the 

» Evansville Hoop & Stave Co. v. Bailey, 43 Ind. App. 153, 84 N. E. 
549 (1908). 

' Minnesota, Laws 1913, C. 316, Sec. 5. 

'John R. Commons, "How the Wisconsin Industrial Commission 
Works," American Labor Legislation Review, February, 19 13, p. 13; 
Labor and Administration, 1913, Ch. XXXI. 



%.m 



SAFETY AND HEALTH 



359 



commissioner of labor, and must be furnished with substantial 
hand-rails. Stair openings on each floor must be closed, as 
well as entrances to elevator shafts. Trap-doors, fences, gates, 
or other safeguards may be required for hoistways, hatchways, 
and well-holes. It is often required that elevators be pro- 
vided with automatic catches to prevent falling. In Wiscon- 
sin the industrial commission had, in 1920, issued more than 
seventy-five orders looking to the safe construction and oper- 
ation of passenger and freight elevators.^ 

Protection against explosions of stationary boilers is best 
exemplified by the methods of the Massachusetts Board of 
Boiler Rules. This board, one of the earliest forerunners of 
the industrial commission plan of drafting and enforcing 
safety measures, was established in 1907.2 It is composed 
of five members: the chief inspector of the boiler inspection 
department, who serves as chairman; one representative of 
the boiler manufacturing interests; one representative of the 
boiler-using interests; one representative of the boiler-insur- 
ance interests; and one operating engineer. The duties of the 
board include the formulation of rules for the construction, 
installation, operation, and inspection of steam-boilers. For 
this purpose public hearings and private conferences are held, 
and the rules as formulated are submitted to the governor 
for approval. When approved they are published and have 
the full force of law. The success of this system in reducing 
the number of boiler explosions has led to its adoption in 
many states and cities, even as far away as Manila. 

6. Protection against Fire. Though the prevention of fire is 
of far more importance than providing means of escape, legal 
provisions covering this point are of comparatively late devel- 
opment. It was not until 191 1, for instance, that New Jersey 
ordered cans to be provided for combustible waste, and it was 
not until 1912 that New York required gas-jets to be inclosed 
m globes, wire cages, or other protection, and forbade smoking 
m factories. Meanwhile, disastrous factory fires in both 
states, due in part to lack of these safeguards, had attracted 
the attention of the country, and resulted in much legislation. 
In some s tates floors must now be swept daily and the sweep- 

I Industrial Commission of Wisconsin, Elevator Code, 1018. 
Massachusetts, Laws 1907, C. 465, Sees. 24-28. 



r 





36o PRINCIPLES OF LABOR LEGISLATION 

ings removed, and the quantity of explosives that may be 
kept in a building is carefully regulated. Sometimes fac- 
tories must be equipped with an automatic gas-cock or ap- 
pliance by which in case of fire the supply of gas may be shut 
off without entering the building. 

Required means of extinguishing fires include pails of water 
or sand, a standpipe and hose of specified dimensions, fire 
extinguishers or automatic sprinkler systems. The major 
part of fire laws, however, is devoted to provisions for prompt 
escape. In the early days of this legislation, since no one had 
taken the time to study out what would constitute effective 
egress, lawmakers contented themselves in most cases with 
ordering "suitable and sufficient" exits and escapes. Now 
the most elaborate details as to material and construction 
are found. Balcony escapes, fire towers, or chutes or to- 
boggans may be used in different states. Doors must be con- 
structed to open out or slide, and must not be fastened in any 
way during working hours. Sometimes the number of em- 
ployees to the floor is regulated, periodical fire drills are called 
for, and gongs, and red lights or other "Exit" signs, must be 
installed. A growing nimiber of states require plans for fire 
egress in new buildings to be passed upon by labor or building 
department officials. 

c. Lighting, Heating, and Ventilation. Although proper 
lighting affects both the health and comfort of the work- 
man and his liability to accident, less attention has been paid 
to this phase of industrial safety and hygiene than to almost 
any other point of similar importance. Comparatively few 
states have enacted any legislation on the subject, and most 
of those limit themselves to meaningless and unenforceable 
provisions such as that factories must be "well and sufficiently 
lighted." 1 A long step in advance was made by the Oregon 
statute of 19 19, requiring factories to be lighted according to 
a minimimi scale of values to be recommended by the lUimii- 

\ Connecticut (General Statutes 1902, Sec. 4518) adds that painted, 
stained, or corrugated glass in factory windows must be removed, "where 
the same is injurious to the eyes . . . upon the order of the factory in- 
spector." In other words, Connecticut permits any factory-owner to 
block out light by any one of the three methods named until ordered to 
desist by the inspector, who must, however, first prove that the dark- 
ness is injurious. 



SAFETY AND HEALTH 



361 



nating Engineering Society, subject to modifications after 
public hearing.^ 

Artificial lighting in factories is notoriously bad because of 
poor quality, insufficient quantity, haphazard distribution 
resulting in spots of excessive intensity separated by danger- 
ous shadows, and glare caused by lack of shades or diffusing 
mediums. Many eye specialists assert that from 80 to 90 
per cent, of headaches are due to eye strain, and in the pro- 
duction of eye strain improper lighting is an important factor. 
The effects of poor illumination are particularly severe upon 
women workers, because of their more delicate nervous or- 
ganization. Yet at the present stage of the art all harmful 
light conditions in factories could be done away with easily 
and cheaply. "It can easily be shown," declares one ex- 
pert, "that a workman earning only $2 per day of ten hours 
would have to lose but three minutes of his time to make a 
loss to the manufacturer equal to the cost of all the artificial 
light he could possibly require during the entire day." ^ 

Indications of what a really scientific law on factory light- 
ing might be are found in the Holland statute. There women 
and children are forbidden to work in establishments where 
artificial illumination is ordinarily required between 9 a.m. 
and 3 P.M. For processes exceptionally trying to the eyes, 
such as embroidering, typesetting, and instrument-making, a 
minimum light of one and one-half foot-candles is specified, 
while for less exacting occupations the minimum is one foot- 
candle. 

With the growth of industrial commissions in the United 
States there is now developing a body of regulations prescrib- 
ing standards of factory lighting by administrative order.' 

A few states authorize the inspector to require changes in 
heating apparatus found dangerous to health, but no stand- 
ards of proper or permissible temperature are set up. Massa- 
chusetts has established for certain textile processes a grad- 
uated standard of humidity permissible at certain tempera- 



* Oregon, Laws 1919, C. 181. 

*F. Leavenworth Elliott, "Factory Lighting," American Labor Legis- 
lation Review, June, 191 1, p. 116. 

'See, for instance. Industrial Accident Commission of California, 
General Lighting Safety Orders, 19 19. 



I 



i 



ffl 



362 PRINCIPLES OF LABOR LEGISLATION 

tures,' but only there and in Illinois is the subject of humidity 
mentioned Yet apart from the presence of dusts and fumes 
the only atmosphene condition which has been thorouehlv 
proven harmful is the combination of excessive heat with ex- 
cessive humidity. 

.nS^°^T*'^" f^*!"! ''"P^rtance of ventilation is more wide- 
TlTu: ^"*^""'"^' .'^"^t ^"d fume, whether metallic, chemical, 
vegetable, or animal in origin, and whether poisonous or not 
are among the niost insidious and serious of modem health 
hazards and the dlness and death of wage-earners vary almost 
m direct proportion to the contamination of the air supply 
Hence about half the states have enacted provisions that fac- 
tones shall be ventilated. The wording, however, is in most 
cases so vague that it means but little. Among the first laws 
Which attempted to establish even an elementary standard 
of ventilation was the Illinois statute of 1909. Under this 
act the amount of fresh air to be supplied depends upon the 
kind of Illumination used, the cubic air space furnished for 
each employee, and the window area of workrooms = Pro- 
visions for from 250 to 600 cubic feet of air space for every 
employee are now found in a few state laws, but more impor- 
tant are the newer regulations providing for the retention and 
removal of dangerous dust and fume at the point of produc- 
tion by specially constructed hoods, hoppers, exhausts, and 
fans Regulations of this type have been established either 
as statute laws or by administrative order principally in the 
^rge lead-using states, such as Illinois. Missouri, New Jersey. 
New York Ohio and Pennsylvania.' As additional precau: 
tions most of these laws require wet-cleaning methods, the 
use of respirators, and separate lunch-rooms, and forbid bring- 
ing any food or drink into the workrooms. Similar provisions 
n the laws of other countries have helped reduce the risk of 
kad poisoning far beneath previous American expectations 
f^or instance, m an American white and red-lead factory 
employing eighty-five men under unregulated conditions, the 
doctors r ecords for six months showed thirty-five men "lead- 

■ Massachusetts, Laws 1910, C. 543. 
Illinois, Laws 1909, p. 202. 

c'LZ ' '°'"P''''^"'=*''" ^^' °f 'his type see New Jersey. Laws 19,4, 



■r-j'?;. /lETTir-^ 



SAFETY AND HEALTH 



363 



ed,** while an English plant of the same nature, with ninety 
employees, but under strict supervision, reported no cases 
for five years.^ 

In at least two cases ventilation statutes have been de- 
clared unconstitutional by state courts, but both times upon 
issues not related to the purpose or benefits of the laws, and 
in both cases they were soon replaced by amended acts. In 
1 90 1 the California law of 1889 was challenged on the ground 
that it made the commissioner of labor the judge not only of 
the need for means of dust removal, but also of the character 
of the appliance to be installed. The supreme court upheld 
the objection,^ but the invalid statute was immediately re- 
placed by a new law, giving the commissioner power to order 
only proper appliances instead of some particular contrivance. 
In Illinois a 19 11 statute forbade the use of emery or similar 
wheels "in any basement so called, or in any room lying 
wholly or partly beneath the surface of the ground." This 
provision the Supreme Court of Illinois held to be an "un- 
warranted discrimination," since it condemned all rooms of 
the class named without reference to their adequate ventila- 
tion or lighting.^ The legislature of 19 15, however, reenacted 
substantially the same provision, with a change of wording 
designed to overcome the objection. 

d. Seats, Toilets, and Dressing-Rooms. In safety and health 
legislation, as well as in legislation on hours and wages, a dis- 
tinct tendency is noticeable to single out women for special 
protection, on the grounds of their greater physical weakness 
and their comparative helplessness as wage bargainers. The 
possibilities of injury from Unsafe or insanitary conditions 
are more apparent and it is easier to make a conclusive case 
in their behalf. Not infrequently health and safety laws ap- 
plied only to women when first passed, but were later extended 
to protect all workers. For instance, in Colorado a law which 
originally required hand-rails on stairways only in buildings 
where women were employed was extended in 191 1 to cover 
all work-places.'* Or in some cases a law affording some pro- 

^ American Labor Legislation Review, December, 19 14, p. 539. 
' Schaezlein v. Cabaniss, 135 Cal. 466, 67 Pac. 755 (1901). 

* People V. Schenck, 257 111. 384, 100 N. E. 994 (1913). 

* Colorado, Laws 1911, C. 132. 



♦ 




364 PRINCIPLES OF LABOR LEGISLATION 

tection to all workers may be of wider scope in its application 
to women. Thus in Missouri mechanical means for dust 
removal must be installed in all factories carrying on dusty 
processes where five or more "persons" are employed, and 
also in dusty workshops if the five or more employee's are 
"children, young persons, or women." i 

Particularly striking is the special protection of women 
manifested in the factory and mercantile laws on seats, toilets, 
and dressing-rooms. In fact, except for provisions in about 
half a dozen states requiring seating arrangements for motor- 
men and conductors on street-cars, legislation with regard to 
seats exists only for women. As far back as the end of the 
'seventies the dangers of constant standing for salesgirls were 
recognized, and it was urged that they be furnished seats and 
allowed to use them. A law containing such provisions was 
passed by New York as early as 1881. Almost every state 
now requires suitable seats for females in at least mercantile 
establishments.2 The majority of laws extend this require- 
ment to manufacturing or to manufacturing and mechanical 
establishments, and several states cover practically all em- 
ployments.3 The proportion of seats to workers is sometimes 
fixed and in many cases the law specifies that employers must 
permit the use of the seats when work will not thereby be 
interfered with.* These laws are of little real importance in 
protecting health, however, since it is practically impossible 
to see that employers and foremen allow the seats to be used 
even when provided.^ 

Nearly all the states likewise require sanitary and separate 
toilets for women workers in addition to those for men, and 
about a third make provision for women's dressing-rooms. 
These provisions form a very important factor in maintaining 
the health and morals of women workers in any establish- 

^ Missouri, Revised Statutes 1909, Sees. 7858-7859. 
By 1920 only Idaho, Mississippi, Nevada, and New Mexico were 
without such legislation. 

» Arizona Arkansas, California, Kentucky, Louisiana, Missouri. 
Montana, Ohio, Pennsylvania, Texas, Washington, West Virginia. 

bee Kentucky, Laws 1912, C. 77, Sec. 3, for both such provisions. 

A law of this class which plainly defeats its own intent is the Dela- 
ware statute of 1913 (C. 176) which provides that no girl under eighteen 
may work in any employment which "compels her to remain standing 
constantly, unless seats are provided." 



SAFETY AND HEALTH 



365 



ment; the character of the employment frequently makes 
necessary a change from street clothes to work clothes, and 
it is also highly desirable that a suitable place be provided 
where women and girls may eat lunch, secure a little rest at 
the noon period, and retire in case of illness. 

For the lead industries, especially, careful wash-room 
standards have been worked out, specifying hot and cold 
water, a definite ratio of basins or of trough length to the 
number of employees, soap, nail-brushes, and towels. In the 
best lead laws, also, such as those of New Jersey, Ohio, and 
Pennsylvania, hot and cold shower-baths are required, to be 
used at least twice a week on the employer's time, and to in- 
sure the use 01 the baths a bath register must be kept. A 
few states require a sufficient supply of pure drinking-water 
to be kept in a readily accessible place. Sometimes, especially 
in connection with foundries and casting-rooms, the lead 
trades and compressed-air work, the dressing-rooms must be 
properly heated and ventilated, and often supplied with lockers 
and with facilities for drying clothes. 

e. Protection from Infectious Disease. Modem industrial 
processes subject large numbers of employees not only to 
dangerous dusts and vapors, but also to a variety of disease- 
breeding organisms, carried either by fellow- workmen or by 
the materials worked upon. As a protection against such in- 
fection a number of legal regulations have been adopted. 

Several states, for example, forbid sleeping in workrooms, 
some require cuspidors to be furnished and to be cleaned and 
disinfected daily. Massachusetts in 19 13 required that cloths 
or other material provided for cleaning printing-presses must 
be sanitary,^ and a California law of the same year laid down 
the rule that all wiping-rags must be sterilized.^ In every 
industrial state hundreds of cases of infection or "blood-poison- 
ing" occur yearly, and about six out of every seven of these 
are the result of small scratches. The requirement now found 
in some states for a first-aid kit in factories, workshops, and 
mercantile establishments should assist in reducing this need- 
less danger. 

Prominent among the infectious diseases of industry is 

* Massachusetts, Laws 19 13, C. 472. 
'California, Laws 1913, C. 81. 




366 PRINCIPLES OP LABOR LEGISLATION 

anthrax, which arises in the handhng of infected hides or hair. 
Austna Belgium, France. Germany. Great Britain, and Italy 
have all turned their attention to eradicating this malady 
Despite searching mvestigation. however, the United Stated 
remains neariy inactive.' The commonest legal safeguards are 
provisions for thorough washing, for overalls. neck^verhS 
TL^^r^' t J°' ''"^''"^ '"'*^"*'y ^^-^t^hes and slight 

of bristles and bales of hair from suspected localities before 
any work is done on them is insisted on in some countries. 
r.Kn n ""^onin^endation of the Washington International 
l>abor Conference of 1919 was for the disinfection, either in 
the exporting countiy or at the port of importation, of wool 
contaminated with anthrax spores. 

/. Tenement House Manufacture. Difficult as are the prob- 
lems connected with the regulation of labor conditions in 
lactones they are not more troublesome than those en- 
countered m the regulation of tenement workshops, where the 
quarter '^""^ ^^^ ^"^'^ ^'°"P '° ''" customkry living! 

Tenement house manufacture is often looked upon as a 

^ITaI f"l^T T*°^ ^'^^'^^y *he mothers of the poor 
may add to the family income in their leisure moments. The 
fact is that such work has usually proven a menace to health 
to wage standards, and to the existing labor laws. Conges- 
tion insanitary quarters, lack of restriction on child labor, ab- 
sdu ely unregulated hours, and miserable pay combine to 
create a condition which endangers the lives not only of the 
workers, but of the purchasers of their product. Often tene- 
ment dwellers have been found at work on gannents and arti- 
cles of food while suffering from contagious diseases ^ 

As eariy as i88s New York sought to end the "sweatine" 
or tenement workshop system by prohibiting the manu- 
facturejf agars and other tobacco products in tenement 



SAFETY AND HEALTH 



367 



houses in cities of the first class. The law was declared un- 
constitutional, the court holding it an abuse of the police 
power and an infringement of the cigar-maker's liberties in 
that it sought to force him "from his home and its hallowed 
associations and beneficent influences, to ply his trade else- 
where." ^ Had this pioneer statute been sustained, the entire 
problem of tenement house labor might have been disposed of 
almost at its beginning. 

The setback in the Jacobs case radically changed the method 
of attack on the sweating system. Prohibition having been 
declared invalid, for three decades nearly all effort was di- 
rected toward regulation and the imposing of minor restric- 
tions through a licensing system. In 1891 Massachusetts 
passed "An act to prevent the manufacture and sale of cloth- 
ing made in unhealthy places," and the following year New 
York inserted in its newly codified labor law a provision fot* 
the licensing and regulation of tenement workshops. Similar 
provisions exist in about a dozen states.^ 

These statutes ordinarily require that home work on gar- 
ments, foodstuffs, and tobacco must be done only in rooms 
licensed by the factory inspection department. Only mem- 
bers of the immediate family, which is carefully defined, may 
be employed, and licenses may be issued only if fire-escape, 
toilet, and all other health and safety laws have been com- 
plied with. In case of disease, work must cease until the 
board of health has declared the illness at an end and has 
fumigated the apartment. A register must be kept of names 
and addresses of persons taking out work, and goods given 
out must be labeled with the name and address of the manu- 
facturer. Licenses are tevokable for failure to comply with 
the law, or, in some of the newer acts, "if the health of the 
community or of the persons employed thereunder requires it."* 

The results of attempted regulation under even the best 
of these laws have, however, never been satisfactory. On 
July I, 19 1 7, for instance, there were more than 15,000 licensed 



> In re Jacobs, 98 N. Y. 98 (1885). 

* In 1920: Connecticut, Illinois, Indiana, Maryland, Massachusetts, 
Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, and 
Wisconsin. 

^ See, for instance, Maryland, Laws 19 14, C. 779, Sec. 248. 



',ifm 



368 PRINCIPLES OF LABOR LEGISLATION 

tenements in New York City alone, and over 700 in the rest 
ot the state. In addition to these, home work was found 
going on m more than 9,000 homes other than tenement 
houses, over which the law gives no control whatever. As 
the workmg day of a factory inspector is eight hours long it 
has been computed that it would require three inspectors'to 
each tenement to which the law applies, or an army of over 
45.000 m all, to set a continuous day and night watch upon 
these dwellmgs to see that no violations of the law were going 
on; and this estimate takes no account of the fact that home 
work IS covertly carried on in unlicensed as well as in licensed 
houses. "After twenty-one years." declare those who have 
long been sympathetic observers of this legislation, "the 
ditticulties of mspection have been proved insuperable " » 
^ In 1913. after the able investigations of the state factory 
investigating commission. New York once more turned tow- 
ard the prohibitory method in dealing with this question 
and forbade work in tenement homes on food products* 
dolls or dolls' clothing, and children's or infants' wearing-ap' 
parel.2 The prohibition covered work done either directly for 
a factory or indirectly through a contractor, and was applied 
to these articles first because of their close relation to public 
health, especially the health of children. There is little doubt 
that m the present state of public knowledge these restrictions 
will be followed by others.^ 

(2) Mines and Tunnels 

Underground work of any sort obviously subjects the work- 
man to greater dangers, both as to health and to safety than 
do most of the manufacturing industries. Distance beneath 
the surface, artificial light, poisonous gases, explosive dusts 
dampness, intestinal parasites, extreme heat, and in some 

> Cons/i/w/iono/ Ameftdments Relating to Labor Legislation and Brief 
V I Sr ^'^'"''^^ submitted to the Constitutional Convention of New 
York State. June 9, 1915 by a committee organized by the American 
Association for Labor Legislation, p. 51. ^ ^"lencan 

* New York, Laws 1913, C. 260. 

» In 1920. for instance the Women's City Club and the City Club of 
New York umted in furthering a bill to prohibit in tenement living r^ms 
all work let out by factories. ^ i^mb 



SAFETY AND HEALTH 



369 



kinds of work abnormal air pressure amounting often to sev- 
eral atmospheres, all contribute to render underground occu- 
pations extraordinarily hazardous. It is for this reason that 
the validity of hour legislation for adult men has become 
thoroughly established in the mining industry, although in 
many other lines of work such restrictions are still subject 
to attack on the score of unconstitutionality.^ 

a. Mining. In these circumstances it is not surprising 
that mining furnishes a higher fatal accident rate than any 
of the other main groups of industry. Metal-mining has a 
higher death-rate than coal-mining, and employment in an- 
thracite coal mines is more dangerous than in bituminous 
mines, since the former are deeper and more subject to ac- 
cumulations of noxious and explosive gases. 

Coal-mining appears to be more dangerous in America than 
in any other country. Standing second with regard to num- 
bers employed, the United States leads all other important 
coal-producing countries both in total number and in rate 
of fatal accidents. During the ten years ending with 19 10 
the average fatal accident-rate per 1,000 employed in coal- 
mining was 3.74 for the United States. 2.92 for Japan, 2.1 1 for 
Germany, 1.69 for France, 1.36 for Great Britain, 1.04 for 
Austria, and 1.02 for Belgium.^ 

Health dangers and occupational diseases among miners 
have been given much less legislative attention than has the 
subject of accidents. Accidents are usually more spectacular, 
their causes are more certain and more easily located, and, 
moreover, an employer may be held in damages for accidental 
injuries to mine worlanen, while only a few American states 
have provided compensation for occupational diseases.* 
Among the more important legal provisions for safeguarding 
the life and health of miners are the requirements for detailed 
maps of mines showing all workings and open at all times 
to mine inspectors, for a sufficient number of escapement 

^ See. however, discussion of this point under "Maximum Hours, 
Men." pp. 266, 267. 

•United States Bureau of Mines, Bulletin No 6q, "Coal-Mine Acci- 
dents in the United States and Foreign Countries," Frederick W. Horton, 
p. 87 

*For a further discussion of this subject see Chapter VIII, "Social 
Insurance." 



370 PRINCIPLES OF LABOR LEGISLATION 

shafts, for proper ventilation and a supply of pure air, and 
frequently for a special employee to inspect the mine daily 
for explosive or poisonous dusts or gases. Precautions against 
falling rock or coal must also be taken by carefully timbering 
dangerous places as far as known. Rules are laid down in 
regard to proper methods of drilling and blasting, and hoist- 
ing-gears and cages for carrying men in and out of the mine 
must conform to specific requirements. Safety-lamps, shelter- 
holes, fencing of machinery, telephone connections, restrictions 
upon the storing of explosives and upon the quality of il- 
limiinating oils — these and many more safeguards are fre- 
quently required and carefully defined by law. In the newer 
laws provision is usually made for a rather limited first-aid 
equipment. 

The enforcement of these provisions in the various states 
is usually entrusted to a special body of mine inspectors, who 
either form a separate bureau of mine inspection or are at- 
tached to the state department of industrial inspection. Mine 
inspection protects the property of the employer as well as 
the lives of the employees, and many states require of in* 
spectors a certain number of years' experience and also civil- 
service examinations conducted by an examining board fre- 
quently composed of representatives of employers and em* 
ployees. The authority of the inspectors is sometimes far- 
reaching, extending even to the power of stopping work if the 
mine regulations have not been obeyed. The best results in 
the enforcement of mine safety and health legislation have 
been achieved in states where, as in Illinois, joint conferences 
of miners and mine-owners have been brought together for 
the administration as well as the drafting of the laws. 

A significant step, which may in time lead to national 
regulation of mining conditions, was the establishment by Con- 
gress in 1910 of the federal Bureau of Mines with the function, 
among others, of conducting "scientific and technologic in- 
vestigations concerning mining," with a view to improving 
health conditions and increasing safety and efficiency. The 
bureau has no authority to do anything except conduct in- 
vestigations, publish reports, and furnish advice, all enforce- 
ment of mine laws being left in the control of the states, but 
within its limited field it has already performed valuable ser- 



SAFETY AND HEALTH 



371 



vices. Series of bulletins and technical papers distributed free 
to miners present the results of the latest scientific inquiries 
into the causes and prevention of mine explosions and other 
accidents, and some half-dozen mine rescue stations have 
been established, one in each of the more important coal fields 
of the country. Connected with each station is a fully equipped 
mine rescue car, in charge of a mining engineer and two es- 
pecially trained miners, which tours the district, giving prac- 
tical instruction in safety work, and is dispatched at once to 
the scene of any disaster. Previous to creating this bureau, 
Congress had enacted a code for the regulation of mining con- 
ditions in the federal territories, which is still in force in 
Alaska and in the insular possessions.^ 

b. Work in Compressed Air. An industrial hazard brought 
into prominence by the increasing construction of tunnels, 
subways, bridges, and skyscrapers is compressed-air illness, 
or the "bends." An investigator for the Illinois Commission 
on Occupational Diseases secured interviews with 161 men 
who had sustained attacks of the malady, and the medical 
director at the construction of the Pennsylvania-East River 
tunnels in New York in 1909 reported 3,692 cases, of which 
twenty were fatal. 

In 1920 only three states. New York, New Jersey, and Penn- 
sylvania, had attempted to control the disease by legislation, 
although in other states similar steps have been taken through 
the method of administrative orders. * The customary pro- 
visions include physical examinations of all applicants for work 
and of all employees at stated intervals, a sliding scale of 
working hours, decreasing as the pressure increases,^ and a 
period of gradual "decompression," ranging from one minute 
for emergence from a pressure of ten pounds above normal to 
twenty-five minutes for emergence from a pressure of fifty 
pounds above normal. Work under more than fifty pounds' 
pressure is forbidden. The employer must maintain dressing- 
rooms with lockers, hot and cold shower-baths, and provision 
for drying clothes. Medical attendants are also required, as 
well as a hospital lock for the recompression and treatment of 
sufferers from the disease. 



* United States, Laws 1890-1891, C. 564. 
' See "Hours of Labor, Men," p. 260. 



2 See p. 381. 



372 PRINCIPLES OF LABOR LEGISLATION 

0) Transportation 

Protective legislation regulating working conditions in 
transportation relates mainly to safety. The development 
of aenal transportation had in 1920 led to no labor laws ex- 
cept the Connecticut provision that aeronauts be licensed 1 
and a Pennsylvania clause that they be over eighteen years of 
age, but in carnage by land and water a large body of statutes 
has gradually grown up. These measures may either be de- 
signed for the protection of employees, as in the case of auto- 
matic couplers on railroads, and the provision for emergency 
exits for seamen, or they may be intended primarily for the 
protection of the traveling public, as in the case of boiler 
inspection in both kinds of transportation. A few measures 
such as the full-crew laws on railroads and in navigation have 
been urged as a direct protection for both laborers and travelers 
-Hie majonty of transportation employees are engaged in 
traffic which is interstate or international in character The 
more important legislation affecting this class of workmen has 
therefore been federal rather than state. Railway employees 
have been more often brought under state laws than have 
seamen, but when any question has arisen over the respective 
junsdiction of state or federal authority the latter has prac- 
tically always been given precedence by the courts 

a Navigation. While slavery and serfdom have been 
abolished for the majority of workmen in most civilized 
countnes, until 191 5 the seaman in America was kept in 
a position of semi-slavery through employment under a con- 
tract enforceable by imprisonment. This position of invol- 
untary servitude gave him but Httle effective voice in regulat- 
ing the conditions under which he worked. In the eariy days 
of sea travel a ship-owner's interest impelled him to secure 
an intelligent and competent crew which could protect his 
cargo^ But with the substitution of steam for sails the 
spread of lighthouses and channel markings, and the growth of 
manne insurance and limited liability legislation, the quality 
of s^manship had greatly declined. In the majority of serious 
sea disast ers m recent years the lack of both skill and numbers 

* See "Technical Qualifications," p. 352. 
In the child labor code, Pennsylvania, Laws 1915, No. 177, Sec. 5. 



SAFETY AND HEALTH 



373 



in the working force has been officially reported. There had 
apparently been a steady increase in the size of the load carried, 
without a corresponding increase in the number and skill of 
those employed to handle it. The "seaman" had been dis- 
placed by the "deck-hand," the American by the northern 
European, and the latter by the immigrant of the southern 



races. 



In a few states legislation looking toward general marine 
safety has been enacted, such as provisions for boiler inspec-' 
tion and signal lights, but most of the legislation affecting 
seamen has been federal. As early as 1798 Congress recog- 
nized the need of special protection for this class of work-' 
men, many of whom are single and homeless. In that year 
the federal government established a marine-hospital fund to 
maintain hospitals for the care of disabled seamen of ships 
belonging to the United States. During the latter half of 
the nineteenth century Congress continued its protective 
policy toward seamen by legislation, regulating, among other 
matters, the conditions of living and working on shipboard, 
the size and experience of crews, and the construction and in- 
spection of vessels. But despite these regulations the position 
of seamen was held to be most unsatisfactory, and it was not 
until the passage of the federal seamen's act of 19 15 that the 
grosser injustices were removed.^ 

While the outstanding features of this act related rather to 
the personal freedom of seamen,^ additional provisions were 
made for the health and comfort of employees through the 
requirement of proper washing-places and sleeping-rooms, 
hospital space, fumigation, heating, lighting, ventilation, and 
drainage. 

It has been repeatedly pointed out that in case of accidents 
at sea, such as fires or boiler explosions, a ship cannot sum- 
mon assistance as a manufacturing establishment, for in- 
stance, is able to do on land, but must rely upon its own crew 
and the chance aid of near-by vessels. For this reason the 
only way really to safeguard human life at sea is to provide 
an equipment and crew adequate to meet any reasonable 
emergency. The seamen's act of 19 15, therefore, provided 

* United States, Laws 1914-1915, C. 153. 
' See "Contract Labor," pp. 44, 45. 



374 PRINCIPLES OF LABOR LEGISLATION 

for a substantial increase in the size of the crews employed, 
for a certain percentage of able seamen, for "certified life- 
boat men," and for properly constructed life-boats, the num- 
ber to be fixed according to the size and character of the ship 
and its cargo. 

b. Railroads and Street-cars. In the early days of railroad- 
ing, reports of deaths and mutilations, particularly in connec- 
tion with the coupling of cars, were repeatedly made public, 
and the need of protective legislation became apparent, espe- 
cially as the length and complexity of lines developed and as 
speed increased. At the middle of the nineteenth century 
only about 9,000 miles of railroad existed. In 1869 a through 
route to California was opened, and by 1880 the total mileage 
had increased to 86,000. Between 1880 and 1890 more miles 
of new road were built than during the entire period previous 
to 1875, and in the early 'eighties a few states enacted protec- 
tive legislation. It soon became apparent, however, that state 
legislation alone would result in long delays and in a great 
lack of uniformity. As the occurrence of serious accidents 
continued and as interstate commerce developed, the need 
of federal regulation became more apparent. 

Many experiments were carried on in search of proper 
safety devices, and as early as 1868 a successful application 
of air-brakes was made. But the most serious danger to 
employees resulted from their being required to go between 
cars in order to couple or uncouple them. It was not until 1887 
that a satisfactory automatic coupler was devised for general 
use. In order to compel the general adoption of the standard 
coupler the necessity of federal legislation was recognized. 

Although the Interstate Commerce Commission, created 
by the federal act of February 4, 1887, had power to investi- 
gate and to regulate rates, the act made no mention of safety 
appliances or the protection of employees. The absence of 
authority over these matters was remedied by the federal 
act of March 2, 1893, and several subsequent acts* made 
it obligatory upon all roads engaged in interstate traffic to 
equip all cars and locomotives with approved automatic 
couplers, and to provide other safeguards such as power- 

» United States, Laws 1892-1893, C. I96; Laws 1902-1903, C. 976; 
Laws i9o(>-i907, C. 225. 



SAFETY AND HEALTH 



375 



brakes and grab-irons.* In this particular, American labor 
legislation was far in advance of European. The results of the 
coupler legislation are particularly striking. In 1890, when 
only about lo per cent, of railway cars were equipped with 
automatic couplers, accidents in the coupling of cars amounted 
to nearly half of all casualties to trainmen. By 191 2, when 
over 99 per cent, of all cars were so equipped, the proportion 
of accidents from this cause was reduced to about 8 per cent. 
The majority of early regulations imposed by the federal 
government, however, left open to the various roads the de- 
termination of the kind and character of devices to be in- 
stalled. The absence of a central standardizing authority 
resulted in lack of uniformity, and at times in the adoption 
of inadequate or ineffective devices. In 19 10, therefore, an 
act of Congress, in addition to making new safety provisions, 
gave to the Interstate Commerce Commission power, after 
proper hearings, to "designate the number, dimensions, loca- 
tion, and manner of application of the appliances," and there- 
after such determinations were to remain as "the standards 
of equipment," and any failure to comply with any require- 
ment of the commission was subject to a "like penalty as 
failure to comply with any requirement of this act." 2 At 
the same session of Congx-ess the commission was given au- 
thority to investigate all collisions, derailments, or other 
accidents, to subpoena witnesses, administer oaths, take testi- 
mony, and to require the production of all papers, books, and 
other evidence. It might also make a public report "together 
with such recommendations as it deems proper." One year 
later $25,000 was appropriated for the use of the commission 
in making tests and establishing standards ^ and a maximum 
of $300,000 a year was appropriated to provide for proper 
boiler inspection by a staff of fifty-three inspectors working 
in close co operation with the commission.'* 

» For the further protection of employees and as a stimulus to the 
roaas to use every possible safety precaution Congress also provided that 
no employee mjured on a train not equipped according to law could be 
held to have assumed the risk of his employment even though he knew of 
the violations. This provision has been upheld in the North Carolina 
case of Greenlee i; Southern R. Co.. 122 N. C. 977, 30 S. E.115 (1898). 

' United States, Laws 1909-19 10, C. 160. 

•United States, Laws 1910-1911, C. 285. 

* United States, Laws 1910-1911, C. 103. 




376 PRINCIPLES OF LABOR LEGISLATION 

Beginning with the great increase in railroad mileage in the 
early 'eighties, state legislation grew in volume and developed 
along two lines, one mainly for the protection of employees, 
and the other mainly for the protection of the traveling 
public. Measures for the protection of travelers are of two 
kinds. The first relates to mechanical devices for the pre- 
vention of accidents, such as automatic bell-ringers, brakes, 
headlights, and signal lights, while the second relates to the 
qualifications and training of employees. 

Among the measures which have been passed primarily 
for the protection of employees are found such requirements 
as those for the installation of grab-irons, ladders, running- 
boards, storm windows in engines, the maintenance of a 
proper temperature in mail or baggage cars, the regulation of 
the height of bridges or other overhead structures, the main- 
tenance of a proper clearance around tracks, particularly in 
railroad yards, the blocking of frogs and switches, and, for 
employees engaged in repairing tracks, the erection of sheds 
to protect them from inclement weather. For the safety and 
convenience of employees who are frequently required to 
travel long distances on freight or stock trains caboose-cars 
must be provided, which must be constructed according to 
certain rules of size, strength, safety, and comfort. 

Employees on street or interurban railways are also fre- 
quently protected through state legislation or municipal 
ordinance. Such measures relate usually to inclosed vesti- 
bules during the winter months, seats for motormen, and 
proper automatic brakes, and occasionally to equipment for 
the sanding of rails, to the examination of employees, and to 
minimum age limits. 

During the past few years the sharpest debate in matters 
of railway safety legislation has centered about the full- 
crew laws, which are held to protect both the public and the 
employee. More than twenty states have enacted such 
legislation. These acts usually apply to both passenger and 
freight service on roads of given lengths, and fix the number 
of employees — principally of brakemen — in proportion to the 
number and kind of cars in the train. Full-crew laws have 
been initiated by the railway men's organizations and have 
been vigorously opposed by the railroad owners, who have 



SAFETY AND HEALTH 



377 



contended that as a rule larger crews are unnecessary because 
of the reduction in the amount of work required of employees 
since the introduction of safety devices, the formation of 
special switching crews, and the generally improved methods 
of handling trains. They point also to the increase in operat- 
ing cost, resulting in reduced dividends and in curtailment of 
improvements.* 

On the other hand, the trainmen point to the large number 
of both fatal and non-fatal accidents, and to the increasing 
strain upon railway employees due to the increase in the 
weight of trains, in the nimiber of tons per train, and in the 
number of cars per man. They hold that by these increases 
the railroads have made their greatest economies. The train- 
men maintain, therefore, that full-crew legislation serves prac- 
tically the same purpose as legislation restricting hours of 
labor, in that both reduce the physical strain and thereby 
the frequency of accidents. 

This is the view which was adopted by the Supreme Court 
of Pennsylvania when in 1913 ^ it upheld the full-crew law 
of that state, enacted in 1911,^ as having a real and sub- 
stantial relation to the safety of passengers and employees 
on railroad trains. The company presented evidence as to 
the cost of the legislation, but the court held that "Uncom- 
pensated obedience to a regulation enacted for the public wel- 
fare or safety under the police power of the state is not taking 
property without due compensation, and any injury sustained 
in obeying such a regulation is but damnum absqtte injuria.'* * 

During the year 19 15 bills were introduced in a number 
of states fixing the maximum length of trains. This legislation 
is also strongly opposed by the railroads, on the ground that 



^ For a full discussion of this subject see bulletin Consecutive No. 73 
of the Bureau of Railway Economics, Washington, D. C, "Arguments 
for and against Train-Crew Legislation," 191 5. 

2 Pennsylvania R. Co. v, Ewing et al., 241 Pa. 581, 88 Atl. 775 (1913)- 
A similar decision was rendered in Chicago, Rock Island and Pacific 
R. Co. V. Arkansas, 219 U. S. 453, 31 Sup. Ct. 275 (191 1), upholding the 
1907 law in that state. 

•Pennsylvania, Laws 191 1, No. 811. 

* In 1 914 the railroad companies succeeded in repealing by a referendum 
vote the Missouri full-crew law of 1913; and in Pennsylvania they in- 
duced the 191 5 legislature to pass a repealing act, which, however, was 
vetoed by the governor. 



fi^^ 



\w 



378 PRINCIPLES OF. LABOR LEGISLATION 

they have expended large sums of money for improved road- 
beds, yard and switching facilities, and for increLed tract^e 
areTn. ^T^^'?' ""^^"^ ^^^^ ^ ^^"^^^^^ ^^^^^^^ if they 
trains ''''''^''' ^^' ^'"^^^ ^"^ ^^^^^^ ^^ ^^^^ 

State provisions for railroad safety have frequently been 
contested on the ground that regulations which apply to inter- 
state commerce are a subject for federal legislation. But the 
courts have uniformly held that where Congress has not legi^^^ 
wihl^'^T f questions the states were entirely within their 
rights. An mterstate road, therefore, might either make such 

iTlthL't T.'' ^^^^^^^^y* ^^ ^t P^-sed from one common- 
wealth to another, to meet the minimum requirements of each 
commonwealth, or it might comply everywhere with the 
Tp^^ Provision found in any of the states through which 

. Although much of the protective railroad legislation is 

s'a^et J^nrth'' 'ki^'?' 'J''''''''^ '' '' --^-^'^ that the 
safety of the public depends in large part upon the safety 

tra Sr tT Tu' ^"t^^ted ^ith the care and management of 
trains. It is this aspect of the matter which has largely in- 

Jn^i? ul ? ''''''l^' in rendering favorable decisions on safety 
and health laws for railway employees. 

The enforcement of protective regulations in relation to 
railway labor has m the majority of states been entrusted to 
railway or public utility commissions created primarily to 
supervise or regulate rates. In this class of legislation, as in 
the regulation of conditions in factories, workshops, and 
mines it has been found impracticable to embody in the 
statute law specifications which will be effective under diverse 
and constantly changing conditions. For this reason many 
legislatures have delegated to the railroad commissions power 
to work out details of provisions and to prescribe safety rules 
and regulations This method of protection has repeatedly 
been sustained by the courts. In 1913 the law creadng the 
Railroad Commission of Indiana, and an eariy ruling of the 
commission fixing a i , 500 candle-power standard for locomotive 
headlights, were both attacked as unconstitutional. The case 
was earned to the supreme court of the state, which upheld 
tne delegation of legislative powers, declaring that "The de- 



SAFETY AND HEALTH 



379 



cisions of this court and the courts of other states in this 
regard are clearly against the appellant's contention." ^ Sub- 
sequent appeal to the United States Supreme Coiut also re- 
sulted in the statute's being upheld.^ 

4. Development of Standards 

A careful study of the early laws to preserve industrial 
safety and health, as passed by Congress and by the legis- 
latures of the fifty American states and territories, discloses 
at once four fundamental defects. 



(j) Defects of Early Legislation 

First among these defects is the incompleteness of these laws. 
It was long the custom of legislatures to specify in the law 
the industries and danger-points which were to be safeguarded, 
and to confine the inspectors' authority to the places and 
conditions mentioned. Under this method many industrial 
danger-points were overlooked. Perhaps ' ' buzz-saw " or " dan- 
gerous dusts" or "foundry" was omitted from the law, in- 
advertently or otherwise. Although often fraught with harm 
to the worker, these unmentioned points were outside the 
authority of the inspection officials, and the workers received 
no protection until the law could be changed. Frequently, 
too, a qualifying phrase greatly limited the operation of a 
good law. For example, the law in one state required poison- 
ous fumes generated "in the course of the manufacturing 
process" to be removed. While varnishing the interior of 
vats in a brewery two men died and one was totally blinded 
for life, due to inhaling the poisonous fumes of wood alcohol 
used in the varnish. But because varnishing vats is in the 
nature of repair- work and does not come "in the course of the 
manufacturing process," the inspectors could not legally 
remedy the dangerous situation. It was necessary to wait an 

* Vandalia R. Co. v. Railroad Commission of Indiana, 182 Ind. 382, 
loi N. E. 85 (19 1 3). For a clear opinion on the delegation of legislative 
authority see Minneapolis, St. Paul and Sault Ste. Marie R. Co. v. Rail- 
road Commission of Wisconsin, 136 Wis. 146, 116 N. W. 905 (1908). 

' Vandalia R. Co. v. Public Service Commission of Indiana, 242 U. S. 
255. 37 Sup. Ct. 93 (1916). 




p 



380 PRINCIPLES OF LABOR LEGISLATION 

entire year (in most states it would have been two years) 
before the legislature convened and the law could be amended. 
Ihese Illustrations indicate a common weakness of early 
safety and health laws in many states. 

The second fundamental defect is the absence of direct re- 
sponsibthty. Many laws placed no obligation whatever upon 
an employer to safeguard danger-points nor upon the em- 
ployee to aid in maintaining safety except "in the discretion 
of the commissioner of labor," or unless "the commissioner 
so directs, or if in the opinion of the commissioner of labor 
It is necessary." This type of legislation placed no duty upon 
the employer to provide nor upon the employee to maintain 
proper protection until required to do so by the inspector. 
No protective devices had to be provided until the inspector 
called and ordered them installed. Scarcely a state but has 
had laws of this character. 

The third fundamental defect is the absence of well-defined 
standards The old theory of factory inspection legislation 
assumed that the legislatures, often made up largely of lawyers 
and farmers, would define in the law the exact nature of pro- 
tection to be provided in factory, workshop, or mine. But be- 
cause of inadequate information, and possibly also because of 
tear ot adverse court decisions, our lawmakers vaguely re- 
quired merely that dangerous machinery be "sufficiently guard- 
ed, usually "where practicable," and left it to the poorly 
trained and poorly paid inspector to enforce these indefinite 
laws, usually 'm his discretion." This discretionary power 
when placed in the hands of uninformed officials, brought this 
method of lawmaking into disrepute among employers em- 
ployees, and the public. ^ y . i 

The fourth fundamental defect is the lack of responsiveness 
to changing industrial conditions. When it had become ap- 
parent that many of the early laws were failing of their pur- 
pose because of the foregoing blemishes, there followed a 
comparatively brief period during which efforts were made 
to frame comprehensive, scientific provisions, free from 
jokers and loopholes, and to secure their passage by the 
egis atures. Perhaps the most noteworthy example of such 
legislation was the standard law enacted in several states 
providing for the protection of workers in the lead trades 



SAFETY AND HEALTH 



381 



In this instance, after careful investigation by the federal 
government supplemented by private studies and many con- 
ferences, a very specific bill was drafted to apply to the various 
processes in the manufacture of lead salts, and the resulting 
legislation served a very useful educational purpose. In a 
few states also the laws undoubtedly hastened the efforts of 
employers to make their work-places sanitary. But it was 
found that some specific safeguards minutely prescribed in 
the statutes were very quickly out of date. In order that 
they might be superseded by improved devices or methods 
there was once more required the slow and expensive action 
of legislatures, which in most states might not be in session 
again for more than an entire year. The impracticability of 
embodying in statute law specific danger-points and specific 
remedies became clear. 

{2) The Method of Administrative Orders 

Legislators themselves began to recognize the futility of 
attempting to formulate in the short and busy sessions, con- 
vening in most states only once in two years, proper protective 
measures. They saw that the proper persons to accomplish 
this work efficiently were those who had an opportunity to 
familiarize themselves with changing industrial conditions. 
Therefore, in several states, legislators decided that they would 
no longer attempt to enact laws specifying in detail what shall 
be done, but instead would ask that work-places be made 
safe. To carry out the will of the legislature they provided 
a commission to work out with employers and employees the 
best possible methods of protection. After public hearings, 
the methods agreed upon were issued by the commission in 
the form of administrative orders or regulations to apply 
state wide and to have the force of law. Here we find the 
very foundation of effective safety inspection work. The 
key-note is cooperation. The experience of the worker, the 
knowledge of the employer, and the critical constructive ability 
of the expert are all needed in the formation of effective stand- 
ards of health and safety and in the enforcement of these 
standards. 

This new method of regulating industrial conditions through 



I ,tit«S 



382 PRINCIPLES OP LABOR LEGISLATION 

administrative orders cooperatively formulated and issued by 
a permanent commission, has resulted in several states in a pro- 
gressive and accurate adjustment of factory inspection to the 
changing methods and new risks that accompany modem in- 
dustry. Concerning this method a former chief factory in- 
spector has said: "As a state inspector, my experience has 
demonstrated that the arbitrary imposition of rules of law will 
not, in itself, produce satisfactory standards for the safety and 

health of employees in factories, mills, and workshops The 

observations which I have made emphasize the importance of 
cooperation and of education of both parties to the labor 
contract as to what are ideal factory conditions. This co- 
operation must be brought about if substantial results with 
reference to safety standards are to be obtained through state 
inspection." Fortunately scientific accident prevention has 
recently been brought into the foreground by the adoption 
of workmen's compensation acts, and it has quickened the 
movement for reorganization of administrative boards in 
many states. 

No longer is it necessary in states like New York, Ohio, and 
Wisconsin, for example, to wait one or two long years for a 
session of the legislature in order to submit proposals for the 
proper protection of the workers. No longer need specific 
rigid provisions be drafted into bills and thrust upon the 
bewildered attention of the legislators while temporarily in 
session at the state capitol. The legislature has laid down 
the law in a broad way; the industrial commission, as rapidly 
as circumstances permit, may fill in the administrative detail. 
Under this new system the industry itself makes the laws for 
its own shop government. Employers and employees, with 
the aid of impartial experts, are learning through self-expres- 
sion the importance and the practicability of the now popular 
motto, "Safety first." The prevention of industrial accidents 
and diseases, particularly when accompanied by social in- 
surance, is becoming a matter of enlightened selfishness; the 
general and the specific statutory requirements of former 
years are being supplanted by scientific standards developed 
chrough administrative orders based on continuing investiga- 
tions.^ 

1 See Chapter IX, "Administration." 



CHAPTER VIII 



SOCIAL INSURANCE 



For most of the economic hazards of life there has been 
developed an appropriate method for the distribution of losses 
and the subsequent elimination of risks. Marine insurance, 
for the financial protection of those who send their goods down 
to the sea in ships, was the first to be developed on an exten- 
sive basis. Insurance against loss by fire is now a regularly 
accepted precaution in every community. By this common 
method of insuring against loss, each individual in the or- 
ganized group is assured that in case of the destruction or 
damage of his property he will be reimbursed from a fund 
contributed little by little by the whole group. Insurance, 
accordingly, has been defined as an arrangement for distribu- 
tion among many of the losses sustained by a few. 

By this thin-spreading of individual losses over a large 
group, the man receiving an income from property destroyed 
by shipwreck or by fire is in a position to reinvest. Even 
more necessary than for the property-owner is insurance for 
the workingman, whose ability to labor is his only asset and 
who is peculiarly liable to be deprived of his income. When 
the laborer, no matter how efficient he may be, has as a result 
of either individual or collective bargaining secured a job for 
himself even if at a wage and under hour limitations which are 
temporarily acceptable, his economic position is still pre- 
carious. He and his family are still face to face with excep- 
tional economic risks, including the suffering and want fol- 
lowing accident, illness, invalidity or premature old age, 
normal old age, premature death, and unemployment. 

Peculiarly necessary, therefore, is this common arrangement 
for group or social action known as insurance, when those who 
suffer the losses are workingmen solely dependent for support 



/, 



I til 






384 PRINCIPLES OF LABOR LEGISLATION 

upon their ability to labor. Such insurance may be developed 
by the initiative of individuals wishing to insure, or it may be 
developed through legislation. When such insurance pro- 
vision is made through legislation, it marks the adoption by 
society of a settled policy of cooperative action to distribute 
among a group the losses suffered by individuals due to their 
inabihty to work and thereby earn a livelihood. It is there- 
fore natural to term this insurance social insurance. 

While savings are sometimes urged as an alternative to 
workmen's social insurance, it is as true for the wage-earner 
as for the merchant, that the provision by each person of a 
reserve sufficient to meet the possible maximum loss is ex- 
travagant, requiring as it does that each person shall be able 
to meet from his individual savings the hazard which will 
fall upon only a small number. Far more economical is the 
institution of insurance whereby the individual sets aside only 
enough to meet the average loss when distributed throughout 
the group. 

The most substantial reason why wage-earners do not 
voluntarily insure themselves against the risks of accident and 
illness, invalidity and old age, eariy death and unemploy- 
ment, IS insufficient income. Reliable information from con- 
servative private and public reports amply confirms the 
statement that the average wage-earner with a family is not 
receiving pay for his labor sufficient "to secure the elements 
of a normal standard of living." 1 It is unreasonable to ex- 
pect such wage-earners to provide against a possible future 
contingency at the sacrifice of present necessaries. 

A further reason for the failure of the underpaid masses to 
insure themselves is indifference or lack of foresight concern- 
ing the problems of the future. Although thrift in the pres- 
ence of subnormal living occasioned by low wages may at 
times become a positive social vice, provision for the future 
is on the whole necessary and beneficial. Furthermore, it 
is recognized that for millions of laborers saving will take 
place only under a distinct incentive. This ' ' enforced saving '* 
against the inevitable rainy day in the life of the workingman 
IS most effectively brought about through the periodical col- 

* See Chapter IV, "The Minimum Wage." 



SOCIAL INSURANCE 



385 



lection of dues or premiums for the support of the various 
forms of social insurance. Moreover, it has been discovered 
that community of interest in directly bearing the financial 
cost of insurance furnishes a kind of cooperative pressure on 
employers ^ which can be utilized effectively in the elimination 
of risks in so far as they are preventable. The rapid develop- 
ment of the "Safety fiirst" movement which followed closely 
the enactment of workmen's compensation laws is sufficient 
evidence of the preventive power of social insurance. 

There is a growing recognition, also, that industry is a 
contributing factor to the hazards of life among wage-earners. 
For example, industry is responsible for work-accidents, and 
is a contributing factor in illness. To the extent that men 
are idle because of industrial irregularities, industry and not 
the worker is responsible for unemployment. Social insur- 
ance plans generally recognize industry's share in creating 
hazards, the burden of which traditionally has rested upon 
the wage-earners, and aim to distribute the cost in accordance 
with the responsibility. By this means social insurance not 
only spreads out the cost among wage-earners as a group, but 
also distributes it between employers and workers. Experi- 
ence with voluntary insurance has demonstrated that the only 
method of making insurance universal among wage-earners, 
and of having employers assume their share of the cost, is to 
make it compulsory. 

Thus, although beginning in each case with some form of 
private organization, there has been developed, to meet the 
peculiar risks which modem industrial workers must endure, 
a special kind of insurance, depending for its inclusiveness, 
its financial security, its economical administration, and its 
effectiveness in reducing the cause of each particular evil, 
upon an element of social compulsion. 

Various countries have social insurance against accident 
and occupational disease, against sickness, against old age and 
invalidity, against death and the consequent dependency of 
widows and orphans, and finally against unemployment. In 
all of this social action an important element of self-defense 
is not lacking. It is clearly recognized that insurance is 



* See Chapter IX, "Administration." 
25 



386 PRINCIPLES OF LABOR LEGISLATION 

the most effective device for protecting society itself against 
the pressure of incapacitated individuals who otherwise would 
be thrown upon the community for maintenance. And while 
attempting to avoid the demoralizing round of charity, by 
means of an insurance program, there is consciously promoted 
a system of individual care aimed at the scientific promotion 
of the worker's efficiency. 



f^^^ 



I. Industrial Accident Insurance 

The first kind of social insurance to be developed exten- 
sively through legislation in the United States, probably be- 
cause of the comparative ease of recognizing both the indus- 
trial cause and the far-reaching extent of the evil, is insur- 
ance against occupational accidents and diseases, or as it 
is more populariy termed in this country, workmen's com- 
pensation. 

Compensation to the injured workman is based upon the 
theory that the consumer of economic goods should bear all 
the expenses incurred in the production of such goods. Among 
those expenses must be included the pecuniary losses from 
deaths and injuries occurring in the regular course of produc- 
tion. Wages lost, medical attendance, and burial expenses, 
in case of accidental injury or death are all losses which should 
be considered as a part of the expense of production. If 
these losses are to be borne by the workman, he indirectly 
carries part of the expense of production. In order to avoid 
this, the expense of work-accidents, it is now generally agreed, 
should be treated like all other expenses of production; it 
should be borne by the employer in the first instance, and 
be shifted by him, in the form of increased prices, upon the 
consumer of those goods in the production of which the in- 
juries were sustained. 

Our present compensation laws have passed through a long 
period of development, and have many precedents. As min- 
ing arid navigation developed in Europe, the workmen of these 
two industries formed, in the eighteenth century and some- 
times even earlier, mutual accident insurance associations for 
their own protection. The above industries were the pioneers 
in forming such mutual associations largely because each man 



SOCIAL INSURANCE 



387 



was greatly dependent for his safety upon the care of his fel- 
low workmen.^ 

In the handicraft production of the middle ages, not only 
were the workmen very closely related, but there was also 
a close connection between the master and his servants. 
Manufacturing in the gilds was conducted on a small scale* 
and each master had but few helpers. Accidents were not 
numerous because machinery was not developed, and produc- 
tion was carried on at low speed. When injuries did occur, 
the master, at least theoretically, took care of the disabled! 

This personal relation of employer and employee to a great 
extent disappears with the development of large scale industry. 
As the number of employees to each establishment increased, 
the owner could no longer give them his personal attention 
and care. ^ The workman gained more personal freedom, but 
lost the aid of his employer in case of sickness and accident. 
To recover damages he now had to seek relief by legal proceed- 
ings, either under the common law or under statutes estab- 
hshing employers' liability; he had to bring suit against his 
master. 

(i) Rules of Employers' Liability 

The conditions under which the injured could recover in 
court were based upon a series of rules which included (a) the 
duties of the employer; (b) the burden of occupational risks* 
(c) the fellow servant rule; (d) contributory negligence; and 
(e) assimiption of risks.=^ 

a. Duties of the Employer. It was considered the duty of 
the employer to use reasonable care in protecting his em- 
ployees against injury while engaged in his service.^ Nu- 
merous court decisions defined this obligation of the employer 
in considerable detail. He was required to provide a safe 
place to work, to furnish safe tools and appliances, to con- 
duct his business in a safe manner, and to select competent 
fellow servants. But reasonable care required the guarding 
of only th ose dangerous conditions of which the employer had 

» United States Commissioner of Labor, Twenty-fourth Annual Report 
1909, Workmen s Insurance and Compensation Systems in Eurooe '' 
Vol. I, p. 977. ■' ^ ' 

« See E. H. Downey, History of Work Accident Indemnity, 1012. p. 17. 
Pnestly v. Fowler, 3 Meeson and Welsby, i, 6 (England, 1837). 



I 



iH 






I 



[fit 



388 PRINCIPLES OF LABOR LEGISLATION 

knowledge or of which by the exercise of reasonable care he 
should have had knowledge. ^ It is held by many experts 
that no matter how great caution is taken against accidents, 
many mishaps will occur which result in death or injury to 
the workman. Establishments in which every machine is 
guarded and where safety work is carried on ably and con- 
scientiously, will, nevertheless, it is declared, have numerous 
accidents. These injuries are said to be due to the inherent 
hazards of the industry; nothing will prevent them. 

b. Burden of Occupational Risks. It is to these accidents 
that the principle of the burden of occupational risks applies. 
The employee assimies the ordinary risks of the employment 
in which he engages. In an eariy American case the court 
stated that "The general rule, resulting from considerations 
as well of justice as of policy, is, that he who engages in the 
employment of another for the performance of specified duties 
and services, for compensation, takes upon himself the natural 
and ordinary risks and perils incident to the performance of 
such services, and in legal presimiption the wage is adjusted 
accordingly." 2 Freeing the employer from liability thus left 
a vast nimiber of injuries and deaths as a direct burden upon 
the workmen and their dependents, with no chance of obtain- 
ing damages. 

c. Fellow Servant Rule, The rules holding the employer 
responsible for exercising reasonable care in protecting his 
employees, and exempting him from liability for inherent oc- 
cupational hazards, were recognized uniformly by the courts. 
The third, or fellow servant rule, involved more serious dif- 
ficulty. The usual rule of law is that a master is responsible 
for the negligence or carelessness of his servants in the course 
of their duties. Since very many accidents to workmen can 
be traced to the carelessness or negligence of a co-employee, 
the application of the rule as between fellow servants was felt 
to be harsh.3 Exception to the general rule was first taken 

> Magee v. Chicago & Northwestern R. Co., 82 Iowa 240, 48 N. W. 02 
(1891). ^ 

« Farwell v. Boston & W. R. Co., 4 Metcalf (Mass.) 49, 57 (1842). 

* Consequently the courts, declare Shearman and Redfield in The Law 
of Negligence, "boldly invented an exception to the general rule of 
masters' liability, by which servants were deprived of its protection." 
(P. w.) *^ 



4 



SOCIAL INSURANCE 



389 



by the English Exchequer Court in 1837 in the case of Priestly 
V. Fowler.^ A butcher driver's helper was injured by the 
breaking down of the wagon. He brought suit against the 
butcher for damages on the grounds that the wagon was in- 
sufficient for its purpose, and that it had been overloaded. 
Damages were denied on the ground that if they were allowed 
the master's Hability would extend very far. He might be 
held liable to the footman who was injured by a defective 
wagon due to the negligence of the coachmaker, or to the 
servant for the negligence of the cook in not properly cleaning 
copper vessels in the kitchen. Besides, the opinion states, 
the driver's helper "must have known as well as his master, 
and probably better," that the wagon was insufficient, or 
overloaded, and might have refused to use it. 

A similar decision was rendered four years later in America, 
without mentioning the Priestly case. In this case ^ damages 
were denied a locomotive fireman who had been injured owing 
to the negligence of the engineer under whom he worked. 
It was held that the railroad company was not a guarantor 
to one employee against the negligence of other employees; 
that the fireman should have been aware of the perils of his 
employment, and that the plaintiff was paid for his labor 
and for the danger to which he was exposed. 

In 1842 Chief Justice Shaw of Massachusetts gave the fel- 
low servant rule a definite formulation and a wide application 
in deciding the case of Farwell v. Boston and Worcester Rail- 
road Corporation ^ in favor of the defendant. An engineer 
brought action for damages because he had lost a leg due to 
the switchman's neglecting to change a switch. Justice Shaw 
argued that any servant might reasonably anticipate that 
his associates will at times be careless and negligent; that this 
is one of the risks of employment, to which, in legal pre- 
simiption, the compensation is adjusted. Want of care can 
be anticipated as much as a coupling out of repair. The 
brakeman^ can guard against one as much as against the 
other — being powerless against both. 
This chain of reasoning was accepted as sound and con- 

* Priestly v. Fowler, 3 Meeson and Welsby, i, 6 (England, 1837). 
2 Murray v. South Carolina R. Co.. i McMullan 385 (1841). 
» Farwell v. Boston and W. R. Co., 4 Metcalf (Mass.) 49 (1842). 



/ 



390 PRINCIPLES OF LABOR LEGISLATION 

elusive, and numerous later decisions were based on it. It 
relieved the master from all liability for an injury sustained 
on account of the negligence or carelessness of a fellow ser- 
vant provided the master had exercised reasonable care in 
his selection.^ 

d. Contributory Negligence. According to the doctrine of 
contributory negligence a plaintiff for damages for an injury 
occasioned by the fault of the employer must, in order to win 
his case, establish his own freedom from negligence. Any 
negligence on the part of the injured, no matter how slight in 
comparison with that of the employer, will cause him to lose 
the suit, if without that negligence the accident would not 
have occurred. Such negligence exists if the employee con- 
tinues to work under conditions which are apparently danger- 
ous and which a reasonably prudent man would avoid, or if 
his own want of due care contributed as a proximate cause 
to the accident.^ 

e. Assumption of Risk. As a last resort to free himself 
from liability the employer cotdd set up the defense that the 
injured workman had "assiuned" the risk. The risk referred 
to in this connection is not the ordinary inherent hazard of 
the occupation, but an abnormal danger of which the em- 
ployee was fully aware, but in spite of which he continued to 
work. The principle of assumption of risk has, however, 
been modified in several states by statutes in favor of the 
workman. This is particularly true in case of children and 
of railroad workers. 

It can easily be seen that with these last four rules, all 
aiming to relieve the employer of liability, it is extremely dif- 
ficult for the injured workman to win a suit for damages. 
In order to gain a favorable verdict he must be able to show 
that the injury was the immediate result of the employer's 
failure to exercise ordinary care, and that it was not contrib- • 
uted to in any degree by his own want of ordinary care. 
Moreover, he cannot recover if the accident was due to an 
ordinary hazard of the employment, or to the negligence of 



* Seymour D. Thompson, Commentaries on the Law of Negligence, 1901- 
1905, Vol. IV, p. 270, § 4048. 

2 Butterfield v. Forester, 1 1 East 60 (England, 1809); Haley v. Chicago 
& Northwestern R. Co., 21 Iowa 15 (1866). 



SOCIAL INSURANCE 391 

a fellow workman, or to a defect due to the negligence of the 
employer that was known to the injured and that created a 
condition under which a prudent man would not have con- 
tinued to work. 

Satisfactory statistics are not available to show definitely 
the proportion of injured men who received indemnity under 
these liability doctrines. From the meager investigations 
which have been made, however, it may be concluded that 
but few recovered damages, and that the amounts were in 
many cases shamefully small. Under the liability system 
insurance companies have engaged in carrying the employer's 
risk. They have expert legal advice, and are able to con- 
test wage-earners' claims even more effectively than the 
average employer. It is true that numerous laws have been 
enacted in most countries attempting to place more liability 
upon the employer; Germany passed a law, wide in scope, 
to that effect in 187 1, and Great Britain followed in 1880. 
The first American employers' liability law was passed in 
Alabama in 1885, followed by Massachusetts in 1887. Among 
the best of these laws was the federal statute establishing the 
liability of railroad companies for injuries to their employees.^ 
Notwithstanding all attempted legal regulation, the position 
of the injured workman was not much improved. To recover 
he had to go to the courts and had to meet the strong legal 
opposition of insurance companies or of his employer. 

Not only are the injured man's chances to win his case very 
small and the machinery too slow to bring relief when it is 
most needed, but the system is extremely wasteful. The fol- 
lowing figures taken from the records of ten insurance com- 
panies for a three-year period will substantiate this state- 
ment : 2 

Collected from employers $23,523,585 

Absorbed by companies in profits and expenses. 14,963,790 
Received by plaintiffs' attorneys (approximate- 
ly) 1,900,000 

Received by injured workmen or their depend- 
ents (approximately) 6,660,000 

* United States, Acts 1907-1908, C. 149. 

' New York Commission on Employers' Liability and Other Matters, 
First Report, 19 10, pp. 29-31. 



•J- 




392 PRINCIPLES OF LABOR LEGISLATION 

Of every $ioo paid by the employer in premiums, but $28 
reached the workman, and that amount only after a long 
legal action in many instances. In certain leading industrial 
states it was found that it required on the average from two 
to six years to reach final judgment in a fatal accident case 
under employers' liability.* 

Without question but a small proportion of cases are taken 
to court, because the injured knows an attempted recovery 
is but a gamble, with all odds against him. As a rule the in- 
surance companies act as if their duty under employers* 
liability is not to compensate the injured, but to defeat their 
claims. 



,:,i 



i: 



(2) Beginnings of Industrial Accident Insurance 

The credit for first realizing that in order to furnish certain 
and adequate relief to the injured workman it was necessary 
to provide insurance for all laborers, and for all accidents, 
must be given to Germany. The original bill to this effect 
was introduced in the Reichstag in 1881, but failed to be 
adopted. The following year a second bill was introduced 
providing for sickness and accident insurance. The sickness 
clauses, including provisions for accident compensation dur- 
ing the first thirteen weeks of disability, were passed in 1883, 
but the accident insurance was again defeated. Finally in 
1884 a bill providing compulsory insurance against accidents 
was passed which became effective in October, 1885. 

a. German System. The German law has been frequently 
amended and extended in scope, and to-day practically every 
industry of that country is included. The federal council 
may exempt non-hazardous establishments upon application, 
but as late as 1909 no such exemptions had been made.* 

Under the German system the compensation of the injured 
workman for the first thirteen weeks of disability comes from 
the sick funds. During the first four weeks he receives 50 
per cent., and from the fifth to the thirteenth week, inclu- 
sive, 66% per cent, of his wages, and the latter proportion is 

* E. H. Downey, History of Work Accident Indemnity in Iowa, p. 79. 

* United States Commissioner of Labor, Twenty-fourth Annual Report, 
Vol. I. p. 993. 



SOCIAL INSURANCE 



393 



continued from the accident funds imtil temporary dis- 
ability ceases. The sick funds are maintained by contri- 
butions two-thirds of which are paid by the workmen and 
one-third by the employers. From the fifth to the thirteenth 
week the additional 16% per cent, of wages is paid by the 
employer in whose establishment the accident occurs. 
Thus accident compensation comes from three sources: 
(i) From the first to the fourth week of disability, inclusive, 
from the sick fimds; 

(2) From the fifth to the thirteenth week, inclusive, from 
the sick fimd, and the additional 16% per cent, from the 
employer; 

(3) After the thirteenth week from the accident insurance 
associations composed of employers. 

During the decade 1886 to 1895 accidents causing a dis- 
ability of less than thirteen weeks formed 84 per cent, of the 
total, and the cost of these injuries, paid from the sick funds, 
is, according to Dr. Bodeker's estimate, 16?^ per cent, of the 
total cost of accident insurance. Since the insured work- 
men pay two-thirds of the expense of the sick funds, they 
therefore provide about 11 per cent, of the cost of accident 
insurance, and the employers 89 per cent.^ 

In addition to the monetary benefit, free medical attend- 
ance, medicines, and appliances are provided. During the 
first thirteen weeks these costs are paid by the sick fund, and 
after that by the insurance associations. To bring about a 
speedy recovery, and to avoid large pensions which would 
result if the injured were permanently disabled, the insur- 
ance associations have established niunerous hospitals, con- 
valescent homes, and similar institutions. 

In case of permanent total disability the injured workman 
receives 66% per cent, of wages for life. For permanent 
partial disablement he receives a pension in proportion to 
the degree of disablement. In computing the amount, the 
nature of his occupation and training are taken into considera- 
tion; for example, the loss of a. finger would affect a linotype 
operator much more seriously than a foundry laborer, and 
accordingly he would receive a larger pension. 

» United States Commissioner of Labor, Twenty-fourth Annual Report, 
Vol. I, p. 999. 






til 



m 






■ '. tl 



N 



4 ; 



304 PRINCIPLES OP LABOR LEGISLATION 

If the accident results in death a funeral benefit is paid in 
all cases, whether the deceased has left dependents entitled 
to survivors' benefits or not. A liberal pension is provided 
for surviving dependents. The widow receives 20 per cent, 
of the average annual earnings of her husband, for life. If 
she remarries she is given three times the annual amount, or 
60 per cent., in a lump sum, but then her benefits cease. If 
a woman supporting a dependent husband is killed, he receives 
20 per cent, of her wages as long as he is unable to support 
himself. Each child receives 20 per cent, of the wages of the 
killed parent until the age of fifteen, but the total benefits 
may not exceed 60 per cent, of the average annual earnings. 
If there are more than two dependent children in addition to 
the widow, the benefits are divided equally so as to total 60 
per cent. 

The most important branch of the administrative ma- 
chinery of the German compulsory insurance law is the mutual 
trade associations. Employers in related trades organize their 
own associations, fix their own rates, and enforce their own 
safety requirements, and to the special facilities which this 
method affords is mainly due the conspicuous success of the 
German system in promoting accident prevention. Each 
Berufsgenossenschaft, or trade association, has its own constitu- 
tion, but is closely regulated by the state and the imperial 
insurance office. Subordinate to the imperial insurance office 
is a system of local and superior insurance offices, each com- 
posed of public officials, with associates elected by and from 
employers and employees, respectively. Judicial and admin- 
istrative matters passed upon by the local office may, subject 
to certain restrictions, be appealed to the superior office, and 
from that to the imperial office, whose decision is usually 
final. 

According to the report of the imperial statistical bureau 
issued in 19 14, over 28,000,000 workmen were instired against 
accidents in 191 2, and $42,500,000 was paid in indemnity. 
The system is cheaply administered and cases are settled 
quickly, giving relief when it is most needed. 

b. Methods in Other Countries. The German insurance sys- 
tem has been described in detail because it was the first to 
be introduced, is one of the most efficient, and affords data 



SOCIAL INSURANCE 



395 



based on experience from which, in various degrees, other 
countries gleaned hints to be utilized in drafting their own 
acts. 

Great Britain passed a compensation law in 1897 which was 
frequently amended and amplified in scope tmtil the present 
law was enacted in 1906.^ All employments, and all injuries 
arising out of and in the course of empl03niient, are covered. 
In case of death three years' wages are paid in a lump sum 
to the dependents. Disability benefits are limited to 50 per 
cent, of wages,^ but continue for fife if the disability is per- 
manent. The employer bears the entire cost of compensation, 
and may either carry his own risk under proper safeguards 
or insure in a private or mutual company. 

The principle of industrial accident insurance, or workmen's 
compensation as it is usually called, is now so generally ac- 
cepted that over forty foreign countries, including practically 
all of any industrial importance, have laws of this character 
covering together some 50,000,000 wage-earners.^ Benefits 
range from 50 per cent, to 80^ per cent, of wages, and in most 
of the important countries medical and surgical aid is ren- 
dered. To secure the payment of benefits, employers are 
usually required to insure their risk, often in institutions pre- 
scribed and controlled by the state. 
c. Inclusion oj Occupational Diseases. Though workmen's 



* For complete summary of this and other European laws see United 
States Bureau of Labor Statistics, Bulletins No. 203, 1917, pp. 297-350; 
243, 191 8, pp. 96-102. 

2 Benefits for total incapacity were increased 25 per cent, for the period 
of the war and for six months thereafter, and beginning January i, 1920, 
a further "war addition" amendment became effective raising these bene- 
fits to 75 per cent, above their original amounts. 

'Among the more important foreign countries with workmen's com- 
pensation systems in 1920, were Argentina, Austria, Belgium, Brazil, 
Chile, Colombia, Cuba, Denmark, France, Germany, Great Britain, 
Hungary, Italy, Japan, Netherlands, New Zealand, Norway, Peru, 
Portugal, Russia, South Australia, Spain, Sweden, Switzerland, Union of 
South Africa, six states in Australia, seven in Mexico, and eight provinces 
of Canada. 

* This latter percentage occurs onlv in the Swiss law of 191 1, Sec. 74, 
and is payable only during the period of illness immediately following an 
accident, after which the compensation for permanent total disability is 
reduced to 70 per cent, of wages. Under both the Swiss and the German 
laws, however, indemnity may be increased to 100 per cent, of wages in 
exceptional cases requiring special care. 



/, 









I 5 
I 4 



396 PRINCIPLES OF LABOR LEGISLATION 

compensation laws originally concerned themselves only with 
mechanical injuries, such as cuts, broken bones, or loss of 
members, it soon became obvious that elementary justice 
required the extension of similar relief to the victims of specific 
industnal diseases contracted in the course of employment 
The first country to take this forward step was Great Britain,* 
which in the act of 1906 included for compensation a schedule 
of six of the commonest occupational maladies. While South 
Australia and several Canadian provinces have followed this 
example, the mother-country has three times expanded its 
onginal schedule until in 1920 no fewer than twentv-eight dis- 
eases were there compensable. These include po'isoning by 
lead, mercury, phosphorus, or arsenic, compressed-air illness, 
anthrax, a number of miners' ailments, glass- workers' cataract' 
and telegraphers' and writers' cramp.i In other countries,' 
also, the beginnings of similar consideration for victims of 
occupational maladies are to be noted. An amendment 
adopted in 191 9 to the French accident insurance law in- 
cludes industrial lead poisoning and mercury poisoning for 
compensation, and other diseases may be added by subsequent 
Iegislation.2 Because of the peculiariy infectious nature of 
the disease and its close connection with the occupations in 
which it occurs, both France and Germany now class anthrax, 
for compensation purposes, as an accident. In France, also,' 
by the financial law of 191 1, employers of miners suffering 
from ankylostomiasis, or "miners' hookworm," are required 
to bear the expense of treatment and to pay compensation. 
Foundations for a broad system of occupational disease in- 
demnity have, moreover, been laid in Germany ' and Switzer- 
land.^ In the former country the federal council has been given 
permission, and in the latter it has been ordered, to draw up 
a list of trade diseases for which compensation shall be paid 
at the same rate as for trade accidents. Up to the beginning 
of 1920, h owever, neither country had drawn up its list. 

» For complete list see United States Bureau of Labor Statistics, Monthly 
Labor Kevtew, Apnl, 1919, pp. 206-207. Two diseases are repeated in the 
schedules m order to cover additional industries. 

» United States Bureau of Labor Statistics, Monthly Labor Review 
January, 1920, pp. 259-261. 

•German workmen's insurance code, 1911, Article 547. 
ArtT^li^^^^^ ^^ relating to sickness and accident insurance, 191 1, 






SOCIAL INSURANCE 



397 



(3) Compensation Legislation in the United States 

As in other forms of social insurance, to be considered later, 
the United States acted much later than European countries 
to provide for the injured workman. The first legislation 
providing for stated benefits without suit or proof of negli- 
gence was enacted in Maryland in 1902, in the form of a co- 
operative insurance law.^ The law was narrow in scope, 
covering only a small specific list of industries, and was de- 
clared unconstitutional in 1904.2 In 1908 Congress enacted 
a law granting to certain employees of the United States the 
right to compensation for injuries sustained in the course of 
employment. In 1910 an act was passed in Montana pro- 
viding for the maintenance of a state cooperative insurance 
fund for miners and laborers in and about mines. This also 
was declared imconstitutional.' 

The first law of general application was passed by New 
York in 1910. It was made elective for most occupations, but 
compulsory for an enumerated list of hazardous employments. 
This statute was declared unconstitutional in 191 1 in the case 
of Ives V, South Buffalo Railway Company,* but an amend- 
ment to the constitution made possible the enactment of a 
compulsory law in 1914. Other states followed New York's 
lead, and during the nine years 1911-1919 compensation laws 
were enacted in forty-two states,^ in addition to Alaska, 
Hawaii, and Porto Rico. Moreover, the 1908 law covering 
federal employees was repealed in favor of the act of 1916, 
which covers all civilian employees of the United States. 

In the eariy days one of the main obstacles to the enactment 
of effective compensation laws was the question of constitu- 
tionality. It was maintained that to require an employer to 
pay damages for an accident for which he was not to blame 

\ ?"'^?^- ^^*?T ^"""^^ °.? ^^^°^ Statistics, Bulletin No. 126, p. 30. 
q»J^^''!'fl •• Vt"'1^ Railways and Electric Co. of Baltimore (1904). 
Sum^nz^^m Umted States Bureau of Labor, Bulletin No. 57, 1965, 

Pac^"""^rT^i^? ^' -^^^^^^^^^"^ Improvement Co., 44 Mont. 180, 119 

|Ives V. South Buffalo R. Co., 201 N. Y. 271, 94 N. E. 431 (1911). 
and SouTh clroliS''^' ^^°"^' Georgia, Mississippi, North Carolina, 



Mjl 



398 PRINCIPLES OF LABOR LEGISLATION 

was taking property without due process of law, that both 
employer and employee were deprived of the right of trial by 
jury, and that the employer was charged with liability without 
fault. 

In 19 1 7, however, the constitutionality of the chief types 
of compensation laws was affirmed by the United States 
Supreme Court in three far-reaching decisions involving the 
New York, Iowa, and Washington laws.* The principal con- 
stitutional question under the New York compulsory law was 
whether the statute, by requiring the employer to make fixed 
payments for his employees' industrial injuries, deprived him 
of any rights of liberty and property guaranteed him by the 
fourteenth amendment to the federal constitution. The 
Supreme Court ruled unanimously that the enactment of laws 
compensating for industrial accidents tended to promote the 
public welfare and was therefore within the police power of 
the state, saying: "We recognize that the legislation under 
review does measurably limit the freedom of employer and 
employee to agree respecting the terms of employment, and 
that it cannot be supported except on the ground that it is a 
reasonable exercise of the police power of the state. In our 
opinion it is fairly supportable upon that ground. And for 
this reason: The subject-matter in respect of which freedom 
of contract is restricted is the matter of compensation for 
human life or limb lost or disability incxured in the course of 
hazardous employment, and the public has a direct interest 
in this as affecting the common welfare. 'The whole is no 
greater than the sirni of all the parts, and when the individual 
health, safety, and welfare are sacrificed or neglected, the 
state must suffer.' 2" The Iowa elective law was sustained 
by a reference to the New York case. 

The Washington law presented a different issue. In that 
state employers in specified hazardous occupations are re- 
quired to pay workmen's compensation premiums to a state 
insurance fimd out of which injured workmen are compen- 



I'i 



» New York Central R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247 
(1917); Hawkins v. Bleakly, 243 U. S. 210, 37 Sup. Ct. 255 (1917;; 
Mountain Timber Co. v. Washington, 243 U. S. 219, 37 Sup. Ct. 260 

(1917)- 

* Holden v. Hardy, 169 U. S. 366, 397, 18 Sup. Ct. 383 (1898). 



>^', 



SOCIAL INSURANCE 



399 



sated. In determining whether such enforced contributions 
were a "fair and reasonable exertion of governmental power" 
the court thought it "proper to consider: (i) Whether the 
main object of the legislation is, or reasonably may be deemed 
to be, of general and public moment, rather than of private 
and particular interest, so as to furnish a just occasion for 
such interference with personal liberty and the right of ac- 
quiring property as necessarily must result from carrying it 
into effect. (2) Whether the charges imposed upon employers 
are reasonable in amount, or, on the other hand, so burdensome 
as to be manifestly oppressive. And (3) whether the burden 
is fairly distributed, having regard to the causes that give 
rise to the need for the legislation." 

In regard to the first point the court deemed the considera- 
tions advanced in the New York decision "sufficient to sup- 
port the state of Washington in concluding that the matter 
of compensation for accidental injuries with resulting loss of 
life or earning capacity of men employed in hazardous occu- 
pations is of sufficient public moment to justify making the 
entire matter of compensation a public concern, to be admin- 
istered through state agencies." 

Upon the second point the court said, "no particular con- 
tention is made that the compensation allowed is unduly large; 
and it is evident that unless it be so the corresponding burden 
upon the industry cannot be regarded as excessive if the state 
is at liberty to impose the entire burden upon the industry." 

On the third question, of fair distribution, the court foiind 
that "the application of a proper percentage to the pay roll 
of the industry cannot be deemed an arbitrary adjustment, 
in view of the legislative declaration that it is "deemed the 
most accurate method of equitable distribution of burden in 
proportion to relative hazard. ... As further rebutting the 
suggestion that the imposition is exorbitant or arbitrary, we 
should accept the declaration of intent that the fund shall 
ultimately become neither more nor less than self-supporting, 
and that the rates are subject to future adjustment by the 
legislature and the classifications to rearrangement according 
to experience, as plain evidence of an intelligent effort to limit 
the burden to the requirements of each industry." 

Although the industry involved in the case, logging, is 



/« 



J 



' 



m 



i ii 



i* u 



400 PRINCIPLES OF LABOR LEGISLATION 

clearly hazardous, the court took occasion to demolish the 
objection that the act includes non-hazardous occupations, 
saying "the question whether any of the industries enumerated 
in section four is non-hazardous will be proved by experience, 
and the provisions of the act themselves give sufficient assur- 
ance that if in any industry there be no accident there will be 
no assessment, unless for expenses of administration." 

But most indicative of the present attitude of the United 
States Supreme Court toward workmen's compensation legis- 
lation is the following statement: "The act cannot be deemed 
oppressive to any class of occupation, provided the scale of 
compensation is reasonable, unless the loss of human life and 
limb is found in experience to be so great that if charged to 
the industry it leaves no sufficient margin for reasonable 
profits. But certainly, if any industry involves so great a 
human wastage as to leave no fair profit beyond it, the state 
is at liberty, in the interest of the safety and welfare of its 
people, to prohibit such an industry altogether." 

Owing, however, to the adverse decision on the early New 
York compulsory law in the Ives case, most American com- 
pensation acts have been made elective. That is, the em- 
ployer is given his choice of accepting the act or of operating 
under the liability law; but as an encouragement to the em- 
ployer to elect compensation, the old liability defenses of fel- 
low servant's fault, contributory negligence, and assumption 
of risk, discussed earlier in this chapter, are abrogated or 
greatly modified. This is frequently called by its opponents 
"club" legislation, but the courts have sustained it as a valid 
exercise of legislative power for a public end. 

The relief which a compensation act gives to the injured 
workman depends upon (a) the scope of the law, (6) the scale 
of compensation, (c) the provisions for rehabilitation, (d) the 
method of administration, and (e) the security for payment 
of awards. A liberal law, that is, one which provides a high 
rate of indemnity, will be of little service unless it applies to 
many cases of accidents, and conversely a law covering many 
or all cases will not accomplish what is intended unless the 
benefits provided are reasonably high. Again, the practical 
results olDtained, no matter how liberal the law, will be seri- 
ously impaired unless means are provided for effective admin- 



SOCIAL INSURANCE 



401 



istration and for securing the actual payment to the injured 
worker or to his dependents of the amount awarded. 

a. Scope of Laws. A compensation system should apply 
to all employments and cover all injuries. In the early days 
of the movement, however, partly because of admxinistrative 
difficulties and partly because of the incompleteness of public 
education on the subject, the exclusion of certain classes of 
workers and of certain sorts of injuries was found temporarily 
advisable. 

(a) Employments Included. Nine main groups of workers 
are commonly excluded from American state compensation 
laws. In the probable order of their importance these are: 
(i) Employees in supposedly non-hazardous occupations; (2) 
agricultural laborers; (3) domestic servants; (4) employees 
in interstate commerce; (5) workmen in establishments em- 
ploying fewer than a given nimiber of persons; (6) public 
employees; (7) casual laborers; (8) those not engaged in the 
regular course of the employer's business; and (9) those in 
employments not conducted for gain. As a result of these 
exclusions the proportion of employees protected in the 
various states ranged in 1920 from 99.8 per cent, in New 
Jersey to only 20.5 per cent, in Porto Rico.^ Altogether it 
was officially estimated at the end of 19 17, when compensa- 
tion laws existed in forty states and territories, that there 
were in these states and territories alone over 8,500,000 Amer- 
ican wage-earners, or nearly 40 per cent, of the total nimiber 
within the area, who could "not possibly be covered under 
any existing compensation act." ^ 

Of the various exclusions mentioned, that of workers in 
"non-hazardous" occupations is particularly indefensible. A 
laborer may be killed no matter how non-hazardous the 
occupation seems. As has often been stated, it is that indus- 
try in which a person is injured which is hazardous. The 
exclusion of casual workers has resulted in much confusion. 
The meaning of the term is not clear, and the various courts 



^United States Bureau of Labor Statistics, Monthly Labor Review, 
January, 1920, p. 237. 

2 United States Bureau of Labor Statistics, Bulletin No. 240, "Com- 
parison of Workmen's Compensation Laws of the United States up to 
December 31, 1917," Carl Hookstadt, p. 29. 



/ 



P!i' 




402 PRINCIPLES OF LABOR LEGISLATION 

and commissions differ in construing it. Longshoremen, for 
example, who work only when a boat is to be loaded or un- 
loaded, have been held not to be casual employees, as the 
irregularity of their employment is inherent in shipping by 
sea. On the other hand, waiters and teamsters, hired for 
particular jobs lasting only a day or thereabouts, have been 
held to be casuals. One state ^ has interpreted casual em- 
ployment to mean all lasting less than a week. Exemption 
of establishments with a small number of employees is based 
on the theory that in such workplaces the accident risk is less. 
When, however, the exemption is extended to all establish- 
ments with fewer than sixteen employees,^ very few are left 
to benefit by the change from employers' liability to work- 
men's compensation. Employees in interstate commerce, 
numbering fully 1,300,000, do not come under state compen- 
sation laws because Congress took jurisdiction when it enacted 
its employers' liability law covering this field. By a five to 
four decision the United States Supreme Court held that the 
work of longshoremen was "maritime in nature," and that 
therefore they came under federal admiralty jurisdiction and 
were not covered by state workmen's compensation laws.^ 
Within a few months Congress adopted an amendment to the 
judicial code which extended the benefits of state compensa- 
tion acts to this large and important group of workmen."* Early 
in 1920, by another five to four decision, the Supreme Court 
declared the amendment to the judicial code to be itself un- 
constitutional.^ 

(b) Injuries Included. All injuries sustained in the course of 
employment should be compensated, except those occasioned 
by the wilful intention of the employee to bring about the 
injury or death of himself or his fellow workmen. These are 
clearly not a hazard of the industry, and should not be com- 
pensated. Some states also exclude accidents caused in part 
by the intoxication of the injured employee. Such exclusion 
is likely, however, to cause litigation over the question of 
whether or not the employee was "intoxicated"; and since 

* California. 

* Alabama, Laws 1919, No. 245. 

» Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 525 (191 7). 

* Public 82, 65th Congress, ist Session. 

^ Knickerbocker Ice Co. v. Stewart (May 17, 1920). 



SOCIAL INSURANCE 



403 



compensation legislation aims at preventing litigation and 
securing prompt aid, limitations of this sort are to be depre- 
cated. Moreover, the safety of fellow workmen requires 
that the employer be discouraged from hiring men who are 
prone to intoxication, and an excellent method of accomplish- 
ing this result is to make subject to compensation all acci- 
dents occurring to such employees. 

In order to induce the workman to make use of the safety 
appliances supplied by his employer, the compensation may be 
reduced if he wilfully fails to use such guards and appliances. 
On the other hand, the compensation should be increased in 
the same proportion if the employer fails to provide the proper 
devices, and the laws of some states include penalties of this 
nature. In Wisconsin, for example, the injured receives an 
increase of 15 per cent, in compensation if the employer did 
not provide guards as required by law, but, on the other hand, 
his compensation is reduced 15 per cent, if he fails to use the 
guards when they are provided. 

{c) Occupational Diseases. The inclusion of occupational 
diseases in compensation laws has been much discussed in 
America. It is recognized that nimierous diseases are con- 
tributed to by the work which a man is doing. Working at 
a dusty occupation causes tuberculosis. Employments re- 
quiring sudden changes in temperature are instrumental in 
bringing about pnetmionia and other organic ailments. To 
cover all these diseases would, however, make a compensa- 
tion law very complex and difficult to administer, and such 
disabilities are probably better taken care of under health 
insurance.^ Nevertheless, there are some diseases which are 
so plainly and directly caused by the nature of the employment 
that they should unquestionably be included. Among these 
are lead, mercury, and phosphorus poisoning, compressed-air 
illness, anthrax, and a niimber of fatigue diseases such as 
miners' nystagmus and telegraphers' cramp. Massachusetts 
has been paying compensation for such injuries regularly under 
its act, and by 1920 the laws of California, Connecticut, New 
York, and Wisconsin had been amended to permit similar 
payments. The plan of including occupational diseases as 



I 



^ See "Health Insurance," p. 415. 



I 



1 



• 



II 
II 



404 PRINCIPLES OF LABOR LEGISLATION 

''personal injuries'* was likewise adopted by Congress in the 
law covering federal civilian employees. 

b. Scale of Compensation. The object of indemnity is two- 
fold — ^first and more important, to restore the workman's earn- 
ing power as completely and quickly as possible, so that society 
will not be burdened with disabled human beings, and second, 
to provide for the support of the family while the surgical and 
medical treatment is being given. To effect the former it is 
imperative that he receive efficient medical and surgical care, 
(o) Medical Attendance. The importance of medical at- 
tendance is often underestimated. Proper, immediate care 
tends not only to reduce the period of disability, but also to 
diminish the number of serious, perhaps permanent complica- 
tions. Lifelong impairment of earning capacity frequently re- 
sults from improper care of fractures; infections or "blood- 
poisoning" could be almost eliminated by efficient immediate 
attention. Of 721 infections reported to the Wisconsin In- 
dustrial Commission during a two-year period, about 600 were 
the result of small scratches and breaks of the skin.^ These 
cases represented a total of 12,500 working days lost, and, 
under the Wisconsin law, a compensation of about $40,000. 
Had proper care been provided, this large loss of time and 
money could have been avoided. 

Full medical aid at the employer's cost is of benefit to the 
workman in that it relieves his suffering, reduces the period 
of disability, and permits his return to full earning capacity 
in shorter time; at the same time, in virtue of this fact, it 
is beneficial to the employer inasmuch as the amount of 
compensation is reduced. If the wage-earner is required to 
pay for his own medical treatment, he will not receive as good 
care. The average laborer has little means to pay for good 
service, even when earning full wages. When disabled and 
receiving only a part of his wages, he is even less able to pro- 
vide himself with proper care. 

The amount of medical aid, in proportion to the total in- 
demnity, is large. During 19 19 awards totaling $18,500,000 
were made to injured worlanen in New York. Of this amount 
it is estimated that approximately $3,750,000, or about 20 

* Industrial Commission of Wisconsin, Shop Bulletin No. 5. 



SOCIAL INSURANCE 



405 



per cent., was for medical aid.^ Thus it is evident that medi- 
cal care is a very important factor in a compensation law and 
should not be underestimated. It is of such importance to the 
welfare of the injured and their dependents that the law should 
require the giving of full free medical attendance, medicines 
and appliances, and should impose a limit neither in time nor 
in amount. Where such a policy has been followed, besides 
vastly benefiting the injured it has achieved marvelous re- 
sults in preventing permanent impairment. 

America is gradually waking up to the economy of liberality 
in this respect, but while most states provide for medical care, 
the majority of them still impose either a time limit, an amount 
limit, or both. The time limits range from two weeks to 
ninety days, while the amount varies from $50 to $600. An 
increasing number of states, however, are giving their ad- 
ministrative boards discretion to increase the period or amount. 

It is evident that in those states having low limits a large 
part of the medical care must be borne by the injured. The 
amounts may be sufficient to take care of the less serious in- 
juries, but in case of accidents resiilting in fractures, disloca- 
tions, and serious sprains a large part of the burden falls on 
the workman himself. 

(6) Waiting Period. It is customary, in compensation laws, 
to provide no monetary benefits for the first few days of dis- 
ability. The intervening time is known as the "waiting 
period" and its object is to prevent malingering; that is, to 
prevent a slightly injured man from pretending inability to 
work, with the expectation of drawing part of his wages. On 
the other hand, if the period is too long it will prove a hard- 
ship to the injured. The proper length of the period is hard 
to determine and varies with individual cases, but it seems 
that three days is sufficient.^ This view is upheld by actual 
accident experience. Studies of accidents made by Dr. I. M. 
Rubinow and by the Wisconsin Industrial Commission show 
that about three-quarters of all accidents requiring medical 
attendance terminate within two weeks, and that two-thirds 

* Figures obtained from New York State Industrial Commission. 

'The American Association for Labor Legislation recommends a 
waiting period of not less than three nor more than seven days. See 
its Standards for Workmen's Compensation Laws, sixth annual revised 
edition, 1920, p. 4. 



I 



4o6 PRINCIPLES OF LABOR LEGISLATION 

terminate within one week. Of these two-thirds, one-half cause 
no disability other than on the day when the accident occurs, 
and one-quarter cause disability lasting from one to three days, 
while only one-quarter result in disability extending over more 
than three days. For example, a total of 36,000 accidents requir- 
ing medical attendance would be distributed about as follows: 

Length of Disability Number of Accidents Per Cent. 

Two weeks and more 9,000 25 

One week or more, but less than two weeks 3>ooo 8-1/3 

Three days or more, but less than one week. . . 6,000 16-2/3 

More than one, but less than three days 6,000 16-2/3 

One day (day of accident) 12,000 33-1/3 

Total 36,000 100 

Hence, if the waiting period is two weeks, only about a quarter, 
and if it is seven days, only one-third, of the injured receive 
compensation. By reducing the period to three days, one- 
half of those injured would be entitled to benefits. 

In a small number of states there is no waiting period and 
compensation begins on the day of accident. Over half of 
the states set a period of seven days or less, and most of the 
others provide for from ten to fourteen days. In some, how- 
ever, compensation is paid from the day of injury in case dis- 
ability continues for more than a specified period, as two, 
four, or eight weeks. Since the large majority of accidents 
cause disability which terminates in a short time, it is impor- 
tant that the period during which no compensation is paid 
be made short. A short waiting period is also an inducement 
for the employer or insurance company to render the best 
treatment to the injured. The sooner the man is able to 
return to work the less the compensation will be, hence small 
accidents will be taken care of in a much better way. 

(c) Compensation for Total Disability. Injuries for which 
compensation is paid may be divided on the basis of their 
severity into three large groups, namely (i) death; (2) partial 
disability or impairment of earning capacity such as the am- 
putation or loss of function of a member; and (3) total dis- 
ability of either a permanent or a temporary nature. The 
vast majority of accidents result in total temporary disability. 



SOCIAL INSURANCE 



407 



The best American laws, of which the acts of North Dakota 
and Ohio, and the federal statute covering federal employees, 
are examples, award to the disabled workman 66% per cent, 
of wages (within certain limits) during the entire period of dis- 
ability. In permanent cases, of course, this means benefits 
for life. The limits referred to are in North Dakota a maxi- 
mimi payment of $20 a week and a minimimi of $6 a week, 
except that if full wages be less than $6 full wages are paid. 

Many of the laws, however, contain provisions far less liberal. 
In some states the percentage of wages paid is 65, 60, or 55 
per cent., and in about one-third of American commonwealths 
which have compensation laws it was in 1920 still as low as 
50 per cent. The weekly maximiun, also, is often lower than 
in North Dakota, being sometimes $15, or in a few cases $10. 
Besides granting a low percentage of wages, frequently held 
down by a weekly maximum limit, most states still further 
restrict the total amount to be recovered, either directly or 
— what amounts to the same thing— by stating a maximimi 
period beyond which compensation is no longer payable. 
Time limitations for total permanent disability vary from 208 
to 550 weeks, and money limitations from $4»ooo to $6,000. 

The reason for these unprogressive restrictions is not hard 
to find. It is that our compensation laws are based upon the 
idea of merely keeping the injured and his family from star- 
vation, rather than upon the principle of replacing wage loss. 
The common 50 per cent, scale is obviously insufficient to 
keep a family from hardship. Despite spectacular instances 
to the contrary, most workmen hardly receive when employed 
enough to pay their current living expenses, and when their 
income is cut in two these expenses cannot be met. The low 
weekly maxima fixed in many states intensify the depriva- 
tion. A family whose head receives ordinarily $40 or $50 a 
week has a fairly high standard of living; and if in case of 
accident the maximum recoverable is limited to $10 or $15 
weekly, that standard cannot be maintained. This is espe- 
cially true if disability is of long continuance, yet some states 
which fix a $12 maximum for the first 400 weeks of disability 
reduce that sum thereafter in some instances to as low as $5 
a week. 

These excessive limitations upon the amount of compensa- 



4o8 PRINCIPLES OF LABOR LEGISLATION 

tion work considerable hardship to the cases which they 
affect, and should not be included in the law If the accident 
results in permanent total disability, the injured should receive 
two-thirds of his wages for life. Nothing short of this will 
bring the proper relief. With a two-thirds normal income the 
family will be deprived of some things, but still the amount 
is sufficient to maintain about the same standard of living, 
and even in the lower-paid classes to keep the family from de- 
pendence on charity. Under our system of laws children are 
required to go to school until a certain age, which means 
considerable expense. If in case of accident causing a total 
loss of earning capacity no proper compensation is provided, 
or if the compensation period is limited, it frequently means 
disintegration of the family. 

(d) Compensation for Partial Disability. Compensation for 
permanent partial disability is based in most states upon a 
fixed schedule of a certain number of weeks* benefit for each 
specific dismemberment, such as fifteen weeks for the loss of 
a little finger, 125 weeks for an eye, or 215 weeks for a leg. 
While this system of a fixed charge for each dismemberment, 
regardless of its effect upon earning power, is easily adminis- 
tered, it is open to serious criticism on the grounds of arbitrari- 
ness and injustice. A system like that in use in California, in 
which partial disability is defined as a proportion of the loss 
of earning power, is more difficult to administer, but results 
in more equitable settlements. In response to the criticism 
that the number of weeks' benefit allowed by the fixed injury 
schedule is too small there has been a tendency to increase 
the specific periods, but the best thought is now against this 
method and in favor of indemnifying on the basis of the loss 
of earning power. For this purpose and to facilitate admin- 
istration California has worked out a schedule showing the 
percentage of impairment in earning capacity which each 
specific injury may be expected to cause to a worker of any 
given age in any given occupation in the state. If the injured 
suffering a permanent impairment of earning capacity is a 
minor, his compensation should be increased until he reaches 
the age of twenty-one, as his wages would probably have 
increased had he not been injured. Several of our states 
already take cognizance of this fact, and the number is growing. 



SOCIAL INSURANCE 



409 



(e) Compensation for Death. If the injury results in death 
a funeral benefit should be paid in all cases, whether or not 
the deceased had dependents entitled to compensation. About 
$100 has usually been regarded as sufficient to cover all essen- 
tial funeral charges. Some states have laws providing funeral 
benefits only if there are no dependents entitled to compensa- 
tion, but most grant funeral benefits in all cases. 

Most states have thus far not been very liberal in prescribing 
the amount of compensation to be paid to dependents. Very 
few of them grant pensions to widows for life or until remar- 
riage. North Dakota, one of the most liberal states in 1920, 
prescribed 35 per cent, of wages for the widow until death or 
remarriage and 10 per cent, additional for each child, the total 
not to exceed 66% per cent. A few states limit the death 
benefit to a specified monthly amount, such as $35 or $50, 
while others set a maximum for the total, varying from $3,000 
to $6,000. 

A life benefit to the widow and additional amounts for each 
child up to the age of eighteen is the only rational system to 
adopt. Statistics show that the average age of injured work- 
men is about thirty-two years. A young family which loses 
its supporter at such an age cannot exist very long on $3,000 
or less. So small an amount will mean that the family must 
lower its standard of living, and that the children will not 
receive the proper care and education. Here again compen- 
sation is regarded more in the light of a means of preventing 
starvation than as a reimbursement for the loss of earning 
power. It may be expected that in the future more and 
more states will grant to the widow a pension for life or 
during the period of widowhood. If there are no depend- 
ents, the death benefit should be paid to a special fund used 
for the purpose of rehabilitating industrial cripples. This last 
provision is found in a few laws, but if there are no de- 
pendents most states provide for funeral benefit only. Full 
death benefits in all cases would tend to wipe out the de- 
sirability to employers of engaging single men with no de- 
pendents, or foreigners if the law excludes non-resident alien 
dependents. To what extent this discrimination is practised 
is difficult to discover. 

The question as to whether alien non-resident dependents 



.,.-'i' 



ii 



410 PRINCIPLES OF LABOR LEGISLATION 

should be entitled to death benefit has been considerably dis- 
cussed, and a few states still expressly exclude them. In a 
number of other states they are expressly included, and else- 
where, as no mention is made of them, they are apparently 
included by implication. There seems to be little justifica- 
tion for excluding non-resident dependent; if our industry 
has been responsible for the loss of a family supporter, due 
remuneration should be made regardless of nationality or 
residence. 

c. Rehabilitation. Of recent years compensation for in- 
juries has come to mean more than partial reimbursement for 
monetary loss. Considerations — perhaps economic in their 
origin, but humane in their outcome — have led to the view 
that no law truly compensates for injury which fails to re- 
habilitate. Rehabilitation includes all that can be done by 
surgery, general reeducation, technical retraining, and assist- 
ance in finding reemployment, to place the injured worker on 
his feet again as a self-supporting citizen. Eleven states had 
by 1920 made provision for rehabilitation of their industrial 
cripples. 

Plans usually call for cooperation between the state indus- 
trial accident board, the state educational system, and the 
state employment service. A bill to grant federal aid on a 
basis of dollar for dollar to states undertaking to rehabilitate 
industrial cripples was passed by Congress in 1920. 

d. Method of Administration. There are two general ways 
of administering compensation laws. One is to appoint a cen- 
tral board with general powers of enforcing the law, and the 
other is to create no machinery for the administration of the 
act, but to provide that all questions arising shall be settled 
by the courts. Of the states having laws in 1920, less than a 
quarter, most of which were of little industrial importance, 
had no central administrative body and left the administration 
to the courts. All other states have adopted the central ad- 
ministrative plan. 

Investigations made by the National Civic Federation and 
the American Federation of Labor, ^ and by the American As- 



* Report upon Operation of State Laws, Senate Document No. 419, 63d 
Congress, 2d Session. 



SOCIAL INSURANCE 



411 



sociation for Labor Legislation,^ as well as by the United 
States Bureau of Labor Statistics, indicate that the adminis- 
trative board plan is much superior to the court procedure 
scheme. The first two studies agreed in estimating that in 
New Jersey not over 60 per cent, of the amounts payable under 
the statute were being paid, and the report of the Association 
for Labor Legislation made it clear that the court procedure 
plan was mainly responsible for this defeat of the legislative 
intent. The chief flaws in the court system were pointed out 
to be (i) the delay of court procedure, (2) the cost of coiut 
procedure, and (3) the unfitness of the courts for the settle- 
ment of compensation claims. The New Jersey statute was 
subsequently amended to provide for the board system of 
administration. 

Prompt, honest, and full compensation, and medical aid as 
required, are the vital factors in bringing relief as desired by 
the law, and to achieve these purposes a central board with 
broad powers is essential. States with central boards having 
full power to make rules and regulations require receipts to 
be filed showing actual payment of compensation, and since 
they provide for arbitration hearings in cases of dispute there 
is little danger of fraud and deception of workmen, and pay- 
ments are promptly made. The board should consist of three 
or five members appointed by the governor and should have 
power to employ necessary assistants. To insure their ade- 
quate attention to the responsible duties of their position, its 
members should be required to devote their entire time to 
its work. 

e. Security of Payment. In order to protect the employer, 
as well as the workmen, liability under the compensation laws 
is commonly covered by some form of insurance. Should 
several of his men meet with a serious accident at one time, 
the small shop-owner or contractor would not be financially 
able to pay the compensation. For this reason most states 
compel employers to insure their risk unless they can give 
satisfactory evidence that they are able to bear losses due to 
accident even if very serious. This, of coiirse, means that 



* "Three Years under the New Jersey Workmen's Compensation Law," 
American Labor Legislation Review^ March, 1915, pp. 31-102. 






I- 






i:- 



412 PRINCIPLES OF LABOR LEGISLATION 

practically all small employers will carry insurance, while 
many large companies will carry their risk themselves. 

The carrying by a concern of its own risk is sometimes 
called "self-insurance," and in addition thereto three other 
methods have been developed: (i) insurance in a state fund; 
(2) insurance in a stock company; and (3) insurance in a 
mutual or interinsurance company. 

State insurance funds are based on the principle that since 
the state by the passage of a workmen's compensation act 
has created a new obligation on the employer, it should pro- 
vide him with the means of fulfilling it economically. Such 
funds have been established in nearly half of the states, in- 
cluding California, New York, North Dakota, Ohio, Oregon, 
and Washington. Sometimes insurance in such a fund is 
compulsory,! while some other states permit insurance in 
authorized private companies. Short as their experience has 
been, the success of the efficiently managed state ftmd is 
undoubted. The New York state fund found its expenses in 
its first six months' experience to be only 17 per cent, of 
premiums, and even this low proportion was cut to 8.5 per 
cent, during 1917. Notwithstanding its rates are lower 
than those of the casualty companies, the fund has several 
times declared dividends, and it is estimated by an official 
investigating commissioner that those New York employers 
who have selected state insurance have saved $4,000,000 in 
four and one-half years.^ The proportion of premiums ab- 
sorbed by administrative expenses is even less in the case of 
exclusive state funds than in the case of competitive funds. 
By 191 7 the exclusive state funds in Oregon, West Virginia, 
and Wyoming had reduced their expense ratios to 5.4, 4.6,' 
and 2.6 per cent, respectively. The Ohio fund in 1918 
had achieved an expense ratio as low as 3.5 per cent, and 
claimed to have saved employers over $6,000,000 within the 
year. 

The funds of Ohio, New York, and Pennsylvania have been 
subjected to critical examination by official coinmissions. The 
consulting actuary who was called in an advisory capacity 

^ By 1920, in Nevada, North Dakota, Ohio, Oregon, Washington, 
2 Report of Investigation by Jeremiah F. Connor, 19 19, p. 26. 



IM 



SOCIAL INSURANCE 



413 



by all three commissions says, as a result of his examination 
into the accounts and administrative procedure of the funds: 
** State funds for workmen's compensation insurance are 
shown by my investigations to be extraordinarily successful. 
They are financially sound. They are operated on the strictest 
actuarial principles. They reduce management expenses to 
0, minimtmi. They have made steady progress even under 
competitive conditions. They permit increasingly liberal 
benefits for injured workers and their families. They result 
in enormous savings to industry." ^ 

Stock companies carry on business for the profit of their 
stockholders. As a consequence of their large business solicit- 
ing organization, comprising thousands of agents, their manag- 
ing expenses are excessively high. In Wisconsin in 1914 the 
operating expenses of these companies were 38 per cent, of 
earned premiums, or 79 per cent, of compensation benefits. 
The average expense ratio of casualty companies in 19 19 was 
about 37.5 per cent. 

Mutual insurance companies seek the protection of their 
own members, who are the policyholders. They do not need 
the large, expensive organization which a stock company must 
have, and therefore their managing expenses are lower. 
Mutiial insurance is insurance at actual cost, any excess of 
premium remaining the property of the policyholder and being 
refunded in the form of dividends. In the state last cited 
the operating expenses of these companies were only 18 per 
cent, of earned premiums. As a result of these low operating 
expenses mutuals can sell insurance at about 25 per cent, 
lower rates than stock companies. A strong feature of the 
mutual insurance method, provided it be made general and 
brought under close supervision, is the added inducement to 
employers to do their own factory inspection. Such volim- 
tary inspection, if stimulated by the financial inducement of 
reduced insurance rates for safer conditions, has generally 
been found even more effective than state inspection. 

The premiums charged for workmen's compensation insur- 
ance obv iously depend greatly upon the benefits provided 

> Miles M. Dawson, "State Accident Insurance in America a Demon- 
strated Success/; American Labor Legislation Review, March, 1920, 



ICgl' g— J!. » <.W 



/ 



414 PRINCIPLES OF LABOR LEGISLATION 

by the compensation act, and thus we have different rates in 
the various states. Another factor which largely determines 
the insurance rate is the hazard of the industry. Thus we 
have one rate for logging, one for machine shops, one for 
clerical pursuits, and so on. But even in estabUshments of 
the same industrial group widely different hazards will be 
found. One company may perhaps take great interest in 
safety work, while another does not. The former would be 
a better risk than the latter and is entitled to a lower rate. 
This allowance is accomplished under a merit rating system. 
Instead of one flat rate for an entire industry, this system 
seeks to adjust the rate of each employer to the hazard of his 
particular establishment. A schedule of credits and charges 
is provided, so that the employer receives credit for conditions 
tending to reduce or prevent accidents, and, conversely, he 
is charged for conditions conducive to accidents. 

The feature of accident prevention just alluded to is too 
often underestimated when discussing compensation laws. 
After all, to prevent the injury is of greater significance than 
to provide compensation for it; accident prevention is the 
greatest feature of a comprehensive accident indemnity 

plan. 

The accident prevention or safety movement has spread 
rapidly in the last few years, and the chief factor in this de- 
velopment is the growing correlation between accident pre- 
vention and compensation. State agencies are usually effec- 
tive in accident prevention work to the degree that they 
secure the cooperation of employers and of workmen. Their 
main function consists in educating these two in methods of 
safety. State agencies can order the application of mechani- 
cal safeguards. Their rules afford standards. But their inspect- 
ors can do but little in comparison with what the employer 
and employee can do, under the stimulus of an adequate 
compensation system. 

Neither insurance companies nor state funds have power 
to compel the safeguarding of machinery, but they can fre- 
quently attain the same end by increasing or reducing the 
insurance rates under the merit rating system previously dis- 
cussed. Many companies now have a force of inspectors who 
investigate the risk before the final rate is computed. During 



SOCIAL INSURANCE 



41S 



19 1 4 the amount expended on factory inspection and accident 
prevention by insurance companies in Wisconsin equaled 2.6 
per cent, of the total earned premium. What has been ac- 
complished through the cooperation of these agencies cannot 
be determined because accident statistics in this country have 
never been adequately compiled in a comparable manner until 
recent years. The indications, however, are that the number 
of fatalities and serious injuries is gradually being reduced. 
C. W. Price, general manager of the National Safety Council, 
states that during the five years when he was connected with 
the Wisconsin Industrial Commission accidental deaths were 
reduced 61 per cent. "One-half of the credit for this accom- 
plishment," he says, "must be given to the stimulus which 
the compensation law gave to the whole safety movement." ^ 
In order to secure more satisfactory industrial accident and 
occupational disease statistics for purposes of prevention as 
well as for rate-making, a number of government bureaus and 
interested organizations have jointly engaged in working out 
unifonn industry classifications and uniform methods of re- 
porting. ^ If the classifications agreed upon are finally adopted 
in all states, the occupational accident and disease statistics 
will be comparable, and a vast amount of valuable information 
will then be available. 

2. Health Insurance 

The development of machinery, the expansion of industry, 
and the growth of the wage-earning class have not only brought 
into existence the problem of industrial accident, but have 
also added importance to the question of the wage-earner's 
ill health. Since a large amount of the worker's time and 
energy are expended in the workshop, it is natural that in- 
dustry and the conditions connected with it are among the 
important factors seriously affecting his health. Foresight, 
consequently, has led to the introduction of health insurance, 
which is gradually being extended to cover all occupations, 
even those in which the risk to health is less obvious. 



^ American Labor Legislation Review, March, 1920, p. 26. 
2 See "Reporting," pp. 325-332. 



i 



II 



i^ 



416 PRINCIPLES OP LABOR LEGISLATION 

(i) Early Steps in Health Insurance 

The importance of adequate provision in case of illness or 
invalidity was recognized by the workers long before the era 
of social insurance. As early as the middle ages the insuffi- 
ciency of individual action was realized, and a more satis- 
factory arrangement, that of insurance, was initiated by the 
mediaeval gilds. Under these early plans insurance was 
purely voluntary and the workers had to bear the full cost. 
This optional unassisted form of health insurance still exists 
in many civilized countries. In this country it is provided 
to a limited extent by trade unions, fraternal societies, estab- 
lishment funds,^ and insurance companies. Except for the 
device of "group insurance," by which a few large concerns 
have insured their employees without charge to them in a 
commercial company, it is the only form of health insurance 
so far in operation here. But under optional insurance most 
workers are either unwilling or unable to make regular ou\- 
lays for the premium, and thus are left without the much- 
needed insurance protection. Other weaknesses frequently 
charged against the system are inefficiency of management, 
inadequacy, lack of state supervision, financial instability, 
and, in the case of profit-making insurance companies, exces- 
sive cost. 

A remedy for these defects was offered in the device of 
government subsidies and control. This measure marked the 
beginning of the second stage in the history of health insur- 
ance and directly prepared the way for the compulsory prin- 
ciple. The aim of government subsidies is to relieve the 
worker from a part of the burden and thus to stimulate in- 
surance; the aim of control is to secure efficient management. 
Subsidies are usually given to the so-called recognized societies, 
that is, health insurance organizations which answer certain 
requirements and submit to government regulations. 

The system of subsidized insurance was first introduced in 
Sweden in 1891, and existed in 1920 in six countries: Sweden, 
Denmark, Belgium, France, Iceland, and Switzerland. The 



SOCIAL INSURANCE 



» Funds organized 'among the workers in one plant or establishment, 
usually under the control of the employer. 



417 



financial assistance granted in these countries and the gov- 
ernment supervision,, potent though they are, cannot be ex- 
pected to be a very vigorous stimulus to insurance among the 
classes most in need of it. Obviously compulsory insurance, 
transferring a considerable part of the burden to industry and 
including in the system those workers who most require this 
protection, is a more effective way of meeting the need. 

(2) Compulsory Health Insurance 

Long before 1883, the first date in the official history of 
social insurance, there existed in several states of Europe 
insurance associations in which the elements of compulsory 
state supervised insurance were found. It was left, however, 
for Germany first to gather, in the year mentioned, these dis- 
persed components into one coordinated unit. By 1920 legis- 
lation had been enacted in Austria, Hungary, Luxemburg, Nor- 
way, Servia, Great Britain, Russia, Roumania, Holland, Portu- 
gal, and Czechoslovakia, and in Poland through a decree sub- 
ject to ratification by the legislature. In several other countries, 
including Italy, Belgium, Sweden, and America, the principle 
of compulsory health insurance was under discussion. 

Health insurance legislation has generally recognized the 
existing mutual sick benefit funds of various kinds, such as 
fraternal societies, trade unions, and establishment funds, 
which were allowed to continue business, provided they com- 
plied with the regulations imposed upon them by the new law. 
In some countries the law also brought into existence new 
insurance associations, the local sick funds, for the insurance 
of persons not claiming membership in any other society. 

The scope of health insurance legislation varies in the dif- 
ferent countries. The cariy legislation was rather restricted, 
but later amendments have in many cases incTeased the num- 
bers covered. Thus, for example, the German legislation 
which covered, in 1885, 4,671,000 persons, or 10 per cent, of 
the total population, was in 191 1 amended to include 14,- 
000,000, or 22 per cent, of the population, and its scope was 
further broadened after the revolution of 19 18. In Norway 
all workers are included whose earnings are below a specified 

amount. The income limits were raised in loii;. 
27 ^ ^ 



4i8 PRINCIPLES OF LABOR LEGISLATION 

The noteworthy act of Great Britain, passed in 191 1, in- 
cludes within its scope all manual laborers between sixteen 
and seventy. Persons not employed at manual labor, such 
as clerks and agents, are compelled to insure if their earnings 
are less than $1,250 a year. Credit should be given to the 
legislators and administrators who found it possible to include 
from the outset both casual workers and homeworkers, even 
though this necessitated special arrangements for collecting 
contributions. Within the insured groups, persons may be 
exempted if they can prove that they have a regular income 
from other sources equal to $130 a year, or that they are not 
dependent for a livelihood upon the earnings of their insured 
occupation. In addition, certain classes of occupations are 
excluded, such as employment under the crown, because the 
terms of employment already offer provision in case of ill- 
ness. The exceptions have proven numerically unimportant, 
so that during the first year of operation 13,742,000 individ- 
uals were insured, or nearly 30 per cent, of the total popula- 
tion.^ 

Recent European legislation tends to be even more inclusive. 
For example, in Czechoslovakia the law embraces all persons 
employed under a contract of hire or apprenticeship, regard- 
less of the remuneration received. In Sweden the recom- 
mendations urge insurance for all with incomes below a 
specified limit, without regard to whether they are employed 
or not. Under these provisions it is estimated that three- 
fifths of the population will be insured 

The cost of insurance is usually distributed between the 
worker and the employer, and in some countries the govern- 
ment also contributes a share. By this device the employer 
is compelled to bear some portion of the cost of sickness among 
his employees, and the worker receives larger benefits than he 
could purchase unaided. A frequent distribution of the costs 
in continental legislation places two-thirds of the cost upon 
the insured worker and one-third upon his employer. In 
Norway the worker contributes six-tenths, the employer one- 
tenth, the commune one-tenth, and the state the remaining 

» For an excellent study of the actual operation of the British act and 
of its administrative problems, see The New Statesman, "Special Supple- 
ment on the Working of the Insurance Act," March 14, 1914. 



SOCIAL INSURANCE 



419 



two-tenths. In continental legislation the premium is fre- 
quently calculated as a percentage of wages. The employees 
are divided into wage groups, and the premiums and benefits 
vary with an increase in the worker's income. Great Britain, 
however, has not followed the continental practice, but has 
adopted a uniform rate of contributions, regardless of wage 
differences. The instired male worker pays weekly 8 cents, 
the female worker 6 cents; in either case the employer adds 
6 cents and the state 4 cents. To mitigate any hardship on 
the low-paid worker, special provisions are made for those 
earning less than at the rate of 62>^ cents a day, whereby 
the worker's contribution is diminished, and that of the em- 
ployer and state increased. 

In return for their contributions, workers usually receive 
both a money benefit and medical care. The cash benefits 
paid in time of sickness are not equal to the full wage, but are 
50 per cent, in Germany, and 60 per cent, in Norway and 
Czechoslovakia. England has been consistent with her fiat 
fate contributions and has adopted a system of tmiform 
benefits of $2.50 a week for men, and $1.87 a week for women.^ 
In general, benefit is not allowed for the first three days of 
illness, and is paid for only a limited number of weeks in a 
year — ^usually for twenty-six weeks, as in England. Benefit 
is usually made conditional upon a doctor's certificate stating 
that the applicant is incapable of work. When the attending 
physician certifies that the patient has recovered, sick benefit 
ceases. 

The German and British acts differ in the character of the 
disabilities which they include. Germany is typical of the 
countries which have included "invalidity" — chronic illness 
or impairment of earning capacity — in the old age insurance 
act, so that only temporary illnesses are covered by health 
insurance. Great Britain, on the other hand, has included 
"invalidity" in the provision for health insurance. The in- 
validity contemplated by the British legislators, however, is 

* Early in 1920 the British government introduced a bill to increase 
the sick benefits of men to $3.75 a week and those of women to $3, to 
raise the disablement benefit of both men and women to $1.87 and the 
maternity benefit to $10. To help meet this increase of benefits, the bill 
proposed raising the contributions of both men and women by 6 cents,^ 
of which the workers would pay 2 cents and the employers 4 cents. 



I 






,^i** 



/ 



420 PRINCIPLES OF LABOR LEGISLATION 

limited to incapacity for work because of disease or disable- 
ment, as distinguished from reduction in earning power. The 
British grouping of invalidity with sickness benefit is probably 
due to the existence of a state system of old age pensions. As 
the recipients do not contribute to the pension, it was desirable 
to make provision for invalidity in the health insurance sys- 
tem, which is contributory. The British invalidity benefit 
consists of a weekly payment of $1.25 as long as incapacity 
for work continues, though it ceases when the ^>eneficiary 
reaches the age of seventy and becomes entitled to an old age 

pension. 

Medical attendance is furnished by many insurance systems, 
including those of Germany, Great Britain, and Norway. If 
an insurance system is to accomplish its ultimate object of 
improving the health of the workers, it is of great importance 
that they receive treatment whereby they may be restored to 
health. Furthermore, it is financially important to the in- 
surance funds that sick members shall recover as quickly as 
possible and so reduce ths amounts expended upon sick 

benefit. 

The medical care provided usually includes not only physi- 
cians* services, but also hospital treatment when needed and 
the necessary medicines and appliances, such as spectacles, 
trusses, and crutches. In Great Britain, where medical care 
was from the beginning less liberal and where specialist ser- 
vices and hospital care were not provided, the inadequacy 
at once became manifest and by 1920 a strong movement for 
more liberal benefits was under way. 

In providing medical care for insured persons, two funda- 
mental safeguards to the economic interest of the medical 
profession have developed which are observed in the best 
practice, namely, free choice of doctor by the patient, and 
collective agreements between the doctors and the adminis- 
trative authorities. Free choice of doctor prevents insurance 
practice from being monopolized by a few physicians and also 
permits the insured to apply for treatment to practitioners in 
: whom they place confidence. Collective agreements between 
, the doctors and the authorities have the same value for the 
medical profession that collective bargaining has for organ- 
ized workers. In Great Britain, for example, free choice of 



SOCIAL INSURANCE 



421 



doctor IS recognized by legislation, while the more detailed 
arrangements with the doctors are made between the medical 
men and the local insurance committees. In practice the 
details of the agreement are settled by negotiations between 
authorized representatives of the physicians and of the insur- 
ance authority for the entire country. Various methods of 
remunerating the physician have been adopted. While 
doctors generally urge payment by the visit, the system of 
"capitation," or a lump-sum payment for each person for 
the year, has been adopted in Great Britain and is pre- 
ferred by the physicians. In some other countries a com- 
bination of the two principles is effected by setting aside 
for the payment of medical services a definite sum for each 
instu-ed person for the year and distributing this amount 
among the doctors upon the basis of the actual services 
rendered by each. 

In the organization of the carriers of insurance each coun- 
try has adapted itself to existing conditions. Germany found 
already in existence mutual aid funds and an effective system 
of compulsory insurance among miners. The former it al- 
lowed to serve as a substitute for compulsory insurance, 
providing that employers might be exempted from contrib- 
uting for workers so insured; it also permitted establish- 
ment funds, under certain conditions, to carry the insurance. 
The system was, however, based in the main on self-governing 
local mutuals, organized by the law, which it has been the 
policy to encourage, so that they are now overwhelmingly 
predominant. 

Great Britain built its insurance system around the volun- 
tary friendly societies, utilizing their organization and per- 
mitting them to establish separate sections for national in- 
surance. Accordingly many societies have both a "private" 
and a "state" section. In contrast to the German method, 
the insured are not grouped according to trade or locality, 
but are given unrestricted choice of society. As a result of 
this freedom, the members of some of the large societies are 
distributed throughout the kingdom and through various in- 
dustries. Segregation by locality, and in some large cities 
by trade, which is not possible under the British system, has 
many practical and technical advantages, such as more pre- 



I 



422 PRINCIPLES OF LABOR LEGISLATION 

cise distribution of the risk and greater ease of adminis- 
tration. 

The methods of establishing security of payments in the 
two countries are quite different. In Germany the dues are 
' calculated so as to cover the current expenditure on benefits 
and to accumulate a small reserve fund. It is, however, a 
recognized fact that sickness increases with age and that any 
voluntary fund organized on this basis would be compelled 
to increase its dues as the members advanced in years in order 
to cover the increasing costs— unless the fund is able to 
attract a sufficient number of young Hves. These younger 
members, paying the same dues as the older members, do 
not claim the same amount of sick benefit, hence from their 
contributions a surplus would accrue which could be devoted 
to making up the deficit caused by the older members. This 
system is practicable in Germany, since each local or trade 
society is practically assured of a due proportion of young 
lives which will pay for the older members. 

In Great Britain the contributions are calculated so that the 
surplus accumulated during the early life of each worker may 
be appUed for his own benefit in later years. That is, con- 
tributions are not calculated on the simple basis of covering 
expenditures, but upon the basis of covering the estimated 
liability for the average person throughout life. This involves 
the accumulation of an "actuarial reserve" for each insured 
person. This method of financing has not been satisfactory 
in Great Britain, where it has been combined with a flat rate 
of premitun and free choice of society. 

(j) Maternity Insurance 

Insurance provision for the needs of mothers at the time of 
childbirth is found in many countries. By 1920 such pro- 
vision was made through compulsory health insurance in 
twelve countries, through compulsory maternity insurance in 
one, through state aided voluntary sickness insurance in five, 
and through state grants in three. ^ 

1 For summaries of some of these laws and their operation, see United 
States Children's Bureau, Publication No. 57, "Maternity Benefit Sys- 
tems m Certain Foreign Countries," Henry J. Harris, 19 19. 



SOCIAL INSURANCE 



423 



In France, Sweden, Denmark, Belgium, and Switzerland, 
government grants are made to sickness societies which vol- 
untarily provide maternity benefits. In France, special socie- 
ties have been organized for the purpose. In Sweden and 
Switzerland the government subsidizes approved sickness in- 
surance carriers and gives an especially liberal grant toward 
meeting the expenditure for maternity care, thus trying to 
encourage provision for this need. In Switzerland the federal 
legislation for voluntary insurance may be made compulsory 
by the individual communes and cantons. In Belgium and 
Denmark government subsidies are given sick funds which 
provide maternity care among their benefits. 

The twelve countries which in 1920 provided maternity 
benefits as part of compulsory health insurance legislation 
include Great Britain, Germany, Luxemburg, Holland, Rou- 
mania, Servia, Austria, Hungary, Czechoslovakia, Poland (by 
decree), Russia, and Norway. The benefits thus provided are 
available for insured women. In some countries, as in Great 
Britain, Holland, and Rotunania, a money benefit only is 
provided, but more frequently both cash and medical care 
are furnished.^ The cash maternity benefit is usually equal 
to the regular cash sick benefit, varying from 50 per cent, to 
the full amount of the basic wage. The period during which 
the cash benefit is paid varies from four weeks up to the entire 
period of incapacity for work.^ Most frequently, however, 
benefit is paid during the six weeks following confinement,^ 
with varying periods before confinement. The legislation of 
a few countries * provides an additional allowance — a nursing 
benefit — during a limited period, provided the mother nurses 
her child. 

Health insurance legislation in some countries ^ also makes 
provision for the uninsured wife of an insured man, usually 
for medical care at confinement. In addition to the medical 
care of uninsured women, Norwegian legislation also provides 

^ Austria, Hungary, Czechoslovakia, Servia, Poland, Luxemburg, and 
Norway. 

2 Holland. 

' Germany, Austria, Roumania, Czechoslovakia, Poland, Norway, 
Russia, and Servia. 

* Austria, Roumania, Czechoslovakia, Poland, and Germany. 

^ Great Britain, Hungary, Norway, Servia, and Germany. 



i 



Il 



I 



11 



424 PRINCIPLES OF LABOR LEGISLATION 

them with a modest cash benefit. Great Britain has departed 
from the continental developments and provides a cash benefit 
of $15 for an insured married woman (regardless of whether 
or not her husband is insured), $7.50 for the uninsured wife of 
an insured man, and $7.50 for an insured unmarried mother. 
An insured woman unable to work during pregnancy is en- 
titled to her usual cash sickness benefit. 

The war with its emphasis upon the importance of adequate 
care for mothers and young children has stimulated even more 
extended provisions. In Germany, during the conflict, ma- 
ternity provisions voluntarily undertaken by the funds in 
addition to the required six weeks' maternity benefit were 
curtailed, and an extensive system of maternity grants financed 
partly by the state but administered by the insurance funds 
was substituted. In September, 1919, Germany placed the 
extended provision for maternity care upon a permanent 
legal basis, decreeing that the war maternity benefits should 
cease with the resumption of peace. This legislation pro- 
vides for a lump sum of $11.90 to meet the expenses of con- 
finement; for $5.95 to meet expenses for the treatment of 
pregnancy complications, if needed; for a maternity benefit, 
equal to the sick benefit, payable for ten weeks of which at 
least six shall follow confinement; and for a nursing benefit, 
equal to one-half the sickness allowance, payable for twelve 
weeks after confinement if the mother nurses her child. These 
benefits are allowed both to insured women, and to uninsured 
wives and daughters of insured men, living in the same house- 
hold with them. Employers of domestic servants or farm 
laborers who are not insured are required to provide the 
same benefits for women employees and the wives and daugh- 
ters of their men employees. In addition, women of small 
means, who are not insured, receive maternity benefits from 
the treasury. 

In Great Britain the emphasis was laid upon more extended 
provision for consultation centers where mothers might go 
for advice and treatment. The government, through the local 
government board in 1916, offered to bear half the expense of 
such centers and other specified free medical assistance to 
mothers afforded by local organizations, public or private. 
Italy, in 1910, established a system of compulsory maternity 



SOCI^ INSURANCE 



425 



insurance applicable to women industrial workers of from 
fifteen to fifty years of age. Women employees and their 
employers contribute equally, while the state contributes 
one-fourth of the confinement benefit of $7.72. 

Direct state aid was in 1920 in existence in Australia, Den- 
mark, and France. In Australia legislation of 19 12 provided 
for a payment from government funds of $24.30 to every 
woman upon the birth of a living child. Danish legislation 
of 19 13 provided that any public relief given lying-in women 
during the four weeks following confinement, when their 
industrial employment is prohibited, shall not be considered 
poor relief. A French act of 19 13 provided a grant from 
public funds to women employed by others for wages. This 
grant is given upon condition that the mother give up her 
usual gainful employment, that she take all practicable rest, 
and that she follow health instructions given her. An addi- 
tional allowance is made if the mother nurses her child. In 
19 18 this act was extended to include all women with insuffi- 
cient means. 

Although in this country several states, beginning with 
Massachusetts in 19 12, prohibit the industrial employment 
of women for a period of several weeks immediately before 
and after childbirth,^ no American state had before 1920 
recognized the justice and necessity of furnishing maternity 
benefits during such periods of enforced idleness. The Inter- 
national Labor Conference of 19 19, held in Washington, 
adopted a draft convention providing that during the six 
weeks' rest which a wage-earning woman may take preceding 
confinement and the similar rest which she is to be required 
to take following confinement, she shall be paid "benefits suf- 
ficient for the full and healthy maintenance of herself and her 
child provided either out of public funds or by means of in- 
surance, the exact amount of which shall be determined by 
the competent authority in each country, and as an additional 
benefit shall be entitled to free attendance by a doctor or 
certified midwife." If insurance is to accomplish its object 
of conserving the health and life of a nation, it is desirable that 
maternity benefits be extended as widely as possible. 



» See "Childbirth Protection," p. 348. 



426 PRINCIPLES OF LABOR LEGISLATION 



(4) Need in the United States 

By 1920 universal workmen's health insurance was eagerly 
discussed in America, a bill having been passed by the New 
York Senate in April, 19 19. Nine states,* through official in- 
vestigating commissions, had reported, thus making available 
to the public a wealth of data concerning the need for this type 
of social insurance. Official investigations have disclosed the 
fact that in the course of a year approximately 20 per cent, 
of the workers are sick, each case lasting on the average about 
thirty-five days. Other investigations have shown that at 
any one time 2.3 per cent, of the workers fifteen years of age 
and over are so sick as to be unable to work, and that sickness 
when distributed over a group means an average of about 8.4 
days of sickness a year for each person. Although the hazard 
has been measured with a fair degree of accuracy, existing 
forms of insurance have so far been unable to meet the situa- 
tion. Official investigations have shown that only about one- 
third of the workers carry health insurance, and that what 
they do carry is usually for small amounts and often unac- 
companied by any medical benefit. Low-paid workers, among 
whom there is most sickness, carry the least insurance. Sav- 
ings from wages, which usually have not kept pace with the 
great increases in the cost of living, are too frequently inade- 
quate to meet the strain of a period of sickness. It is not 
surprising, therefore, that sickness is a factor in more cases of 
dependency than any other one cause, being involved in at 
least one-third of the cases which seek relief from voluntary 

charity. 

Although the burden is borne by the workers and those 
philanthropically inclined, there is accimiulating evidence that 
industry is also a factor in causing sickness and that it should 
justly bear a portion of the expense. Investigation has also 
shown that the medical needs of sick wage-earners are inade- 
quately met, partly on account of inability to pay the cus- 
tomary fees. As a result, many go without proper care, or 
obtain medical charity where it is available. The recent 



1 California, Massachusetts, New Jersey, Connecticut, Wisconsin, Ohio, 
Illinois, New York, and Pennsylvania. 



SOCIAL INSURANCE 



427 



advances in medicine resulting in increased specialization have 
increased the expensiveness of medical service and the need 
for its organization. Among those familiar with the social 
side of medicine there is a keen realization that a reorganiza- 
tion of medical practice and new methods of financing it are 
urgently needed. 

After a careful surv^ey, the California Social Insurance Com- 
mission, which was the first to report, concluded that, "Health 
insurance to be effective must be made compulsory upon the 
individual worker." ^ The Pennsylvania Health Insurance 
Commission stated two years later, "Your commission believes 
that the best way to close this sickness highroad to poverty 
and dependency is to make available immediate and adequate 
medical care for sickness cases and to prevent the financial 
burden of sickness from falling entirely on the person least able 
to bear it — the sick worker. In some way the burden should 
be distributed among all wage workers, or shared by indus- 
try and by the community as a whole." ^ The New York 
State Federation of Labor, in recommending compulsory 
health insurance, pointed out that only through this method 
could a portion of the cost be passed on to industry. On the 
medical side, health insurance distributes the cost of medical 
care between industry and the workers and enables the w^orker 
to pay his share of the cost in advance during periods of good 
health. It will also facilitate the organization of group prac- 
tice which is required by the recent advances in medicine. 

The bills which have been introduced in the various state 
legislatures follow in the main the standards for health in- 
surance formulated by the American Association for Labor 
Legislation in 1 9 1 4.^ They usually provide for a cash sickness 
benefit during twenty-six weeks, medical care, maternity bene- 
fits, and a funeral benefit. The cost is divided equally be- 
tween worker and employer, while the state bears the cost of 
central supervision. The insurance is to be carried by mutual 
democratically managed associations of workers and employ- 
ers, called "funds," which the state will supervise. 

In addition to the relief value of such measures they contain 

^ Report of the Social Insurance Commission of California, it)t7, p. 121. 
2 Report of the Health Insurance Commission of Pennsylvania, 1919, P- 9- 
» American Labor Legislation Rcineu\ December, 19 14, pp. 595-596' 



428 PRINCIPLES OF LABOR LEGISLATION 

important possibilities for the prevention oi illness. After a 
century of rapid industrial growth and increasing urban popu- 
lation we are just beginning to value as a social factor the 
sanitation which drains cities, provides pure water and pure 
milk, and quarantines infectious diseases. We have too long 
failed to realize that the ill health of the individual, even 
though he may not be suffering from a contagious disease, is 
a matter of public concern. Medical care of adults is no less 
important for a state which values the lives of its citizens than 
is the medical examination of school children which we have 
already adopted in the larger cities. 

More general medical consultation will reveal unsuspected 
tendencies which, if Allowed to develop, will have as pernicious 
effects as the adenoids we are careful to remove from school 
children. Here, as in England, there are many wage-earners 
who are unable to afford a doctor's fee. Nor is the dispensary 
service given in the large cities sufficient to meet the need. 
A socialized medical service, whereby all who require the ser- 
vices of a physician may have access to the necessary treat- 
ment, has been found very effective in some countries. Great 
Britain's health insurance act has revealed a mass of human 
suffering, especially among women, which hitherto had re- 
ceived no medical attention. Because of the increased use of 
doctors, a far larger number of persons have been discovered 
who need operations and hospital care — persons whose ills 
previously would have gone without treatment until the suf- 
fering had become acute and the chances of recovery had 
been diminished. The need revealed has been so great that 
there is strong sentiment in favor of extending medical care 
under the insurance act to the dependents of the insured. 
Socialized medical service has resulted in prophylactic treat- 
ment for the individual and in the conservation of national 
vitality. 

Great Britain's health insurance act has been an incentive 
for undertaking a national campaign against tuberculosis. 
By means of a sanatorium benefit for insured workers 
siiffering from thig disease, more adequate treatment is being 
provided. 

Furthermore, the necessity of spending money on prevent- 
able disease is in itself a stimulus to prevention. Various Eng- 



SOCIAL INSURANCE 



429 



lish bodies have been aroused by this factor to a keen mterest 

in the relation between tuberculosis and housmg. The tinan- 

cial pressure on "approved societies" is a direct mducement 

to demand thorough inspection of dwellings and workplaces, 

especially since the delinquent authority can be made to pay 

thrcost of the sickness produced by the poor sanitary condi- 

tions which it has allowed to exist. In its report on pubhc 

health, after the war. the British Ministry of Reconstruction 

stated of the workings of the insurance act: "The attention 

thus drawn to these [sickness] conditions not only stimulated 

provision for the direct alleviation of existing suffering, but 

also encouraged the rediscovery, a^ it were, following the 

course of evolution of medical science, of a humaner principle 

of prevention, as the means by which the sufferings of the 

individual could best be relieved or averted. In another 

general respect the insurance act entirely altered the previous 

position. It created a new body of organized pubhc opinion 

with a financial interest in the improvement of the national 

health." ^ ^ • j ^ 1 , o v 

It is also possible, as the American plans provide, to levy a 
higher premium upon the industry or particular establishment 
in which the sickness rate is higher than normal. Ihis is a 
means tending to persuade the employer of the economy of 
factory sanitation which will improve the health of the worker 
and thereby reduce his insurance premium. It is the same , 
inducement of low insurance premiums for worteien s com- 
pensation which is partially responsible for the Safety first 
movement and the installation of safety apphances. With- 
out a compulsory health insurance system, the economy ot 
health preservation cannot be made an effective lever tor 
reform. 

3. Old Age and Invalidity Insurance 

The rapid development of industry has, among its other 
results, placed emphasis on the individual's physical vigor and 
wage-earning capacity. It has deprived old age of the esteem 
bestowed upon it under more primitive patriarchal conditions, 



2j, 



Great Britain, Ministry of Reconstruction, Reconstruction Problems, 
'•Public Health, I— A Survey," IQIQ, PP- ^'7- 







' ' 



430 PRINCIPLES OF LABOR LEGISLATION 

and after a life of productive toil it relegates to the back- 
ground the aged or incapacitated mah as a useless, uneconomic 
factor. Failing health, inability to find employment, lack 
of means, often absence of friends willing or able to help him 
— such is the prospect which confronts, in the great majority 
of cases, the aged worker. 

(x) Unassisted Old Age Insurance 

In response to the gravity of this situation three main 
measures of relief have been developed: charity, saving, and 
insiu*ance. Charity has been known since ancient times, and 
no doubt has relieved a deal of destitution. But the modem 
opinion is that charity, both private and public, is insufficient 
in amount and unsatisfactory in quality; that it exercises a 
degrading effect upon the recipient and is repugnant to the 
self-respecting person. The serious difficulties in the way of 
saving are also well known. The low standard of wages sel- 
dom, if ever, allows any surplus; most often the immediate 
demands outweigh the argiunents in favor of saving. Be- 
sides, the very remoteness of old age and the uncertainty of 
attaining it discourage many people from making preparation 
for the future at the expense of the present. In this problem, 
as in that of provision for illness, the collective process of 
insurance is considered much more satisfactory than the in- 
dividuaUstic method of savings. Professor Seager has said 
that "for every wage-earner to attempt to save enough to 
provide for his old age is needlessly costly. The intelligent 
course for him is to combine with other wage-earners to ac- 
cumulate a common fund out of which old age annuities may 
be paid to those who live long enough to need them." ^ 

The development of old age and invalidity insurance is 
similar to that of health insurance. The first stage in the 
movement was marked by optional unassisted insurance, 
which is still furnished by some fraternal societies, trade 
unions, establishment funds, and insurance companies. How- 
ever, the number of fraternal societies and trade unions, 
either here or abroad, which undertake the complicated busi- 



* Henrv ^' 3tager, Social Insurance, 19 lo, pp. 118, 119. 



SOCIAL INSURANCE 



431 



ness of old age and invalidity insurance is small. In many 
states of this country fraternal societies are prohibited trom 
dealing in it. Only forty-two out of 182 general or national 
fraternal benefit societies in the United States promise old 
age benefits, and these usually do not begin until the age of 
seventy has been reached.^ As to American trade unions, out 
of about 120 existing national organizations four are known 
to pay a superannuation benefit. These are the International 
Typographical Union, the Granite Cutters' International As- 
sociation, the Amalgamated Society of Carpenters and Joiners, 
and the Amalgamated Society of Engineers, the last two 
being branches of English unions. In a few other unions the 
introduction of this form of insurance is being considered and 
in some old age benefits are paid by individual locals. Nine- 
teen unions,^ the majority of which consist of transportation 
workers, pay a permanent disability benefit. Business con- 
cerns furnishing old age insurance for their employees are also 
rare, especially in this country, as are those granting straight 
old age pensions. Insurance companies do a considerable old 
age annuity business in Europe, chiefly among the middle 
class; in the United States, on thC contrary, commercial old 
age insurance for wage-earners is little known. 

(2) Assisted State Plans 

Obviously, voluntary unassisted old age insurance reaches 
only a small part of the wage-earners. As a consequence, as 
in the other branches of social insurance, it came to be con- 
sidered the duty of the state to assist its aged citizens, and the 
principle of state insurance, sometimes aided by subventions, 

was devised. . 

This form of voluntary old age insurance is known m 1^ ranee, 
Belgium, and England, and in America in the states of Massa- 
chusetts and Wisconsin, and in Canada. France and Belgium 
grant subventions in the form of a substantial rate of interest, 
and to certain classes of insured direct subsidies are given. 

1 Lee W Sauier. Old Age Dependency in the United States, 1912, p. 67. 
.edited Stres'Commfssionrr of Labor. T-^.^^^'f .^^^^^^^^ 
"Workmen's Insurance and Benefit Funds m the United States, 1908, 

P- 31- 



1 



432 PRINCIPLES OF LABOR LEGISLATION 

The state also furnishes the administrative machinery and 
running expenses. The Massachusetts plan is a system of 
voluntary old age insurance through the savings banks under 
state supervision, while the Wisconsin system provides for 
the issuance of annuities by the state life fund under the 
supervision of the insurance commissioner. 

But even state assistance and supervision failed to secure 
for old age and invalidity insurance any large measure of 
popular acceptance. Experts commonly agree that even gen- 
erous subsidies do not seem to attract more than a small 
part of the wage-earners; that in a large number of cases the 
pajmients are either made irregularly or are after a while sus- 
pended, and that the benefits paid are very small. 

In view of the insufficiency of state control and subsidy, 
two other very significant elements of social insurance were 
added, namely, compulsion and the requirement of the em- 
ployer's contribution. 

(j) Compulsory Systems 

Compulsory old age and invalidity insurance has been 
slower in developing than health insurance, but recently it 
has made rapid advances. By 1920 it was established in the 
eleven countries of Germany, Luxemburg, France. Roumania, 
Sweden, Holland, Austria. Spain, Italy, Portugal, and Czecho- 
slovakia, and in the United States for all federal government 
employees in the classified civil service. In this branch of 
social insurance, as in the two previously discussed, Ger- 
many took the lead, enacting its first law in 1889. All 
German wage-earners of the designated ages and occu- 
pational groups, regardless of size of income, are com- 
pelled to insure. Salaried workers in specified occupations 
are included, with the exception of those earning more 
than $476 a year, who may, in common with other classes, 
take out voluntary insurance. Contributions are of five 
grades, ranging from 4 cents to 12 cents a week accord- 
ing to the worker's income, and are paid in equal parts 
by employer and employee. The pensions also are divided 
into five groups, corresponding to the five grades of con- 
tributions. The state's contribution consists in the pay- 



SOCIAL INSURANCE 



433 



ment of a fixed sum annually to each person in receipt of 
a pension. A necessary condition for receiving a pension is 
the payment of contributions for not less than 1,200 weeks. 
To meet the need of persons who are already of advanced age, 
transitory provisions are introduced, reducing the required 
1,200 weeks' payments by forty for each year of age over 
thirty-five when the law went into effect. The age qualifica- 
tion for receiving an old age pension, first set at seventy years, 
is now reduced to sixty-five. 

Provisions for old age are subsidiary, in the German law, to 
those for invalidity insurance. An insured person of any 
age, who on account of diminished strength is unable to earn 
one-third of the wages usually paid to normal workers in his 
occupation, is entitled to an invalidity pension. In 1908, 
894,000 persons were in receipt of invalidity pensions as 
against 102,000 who w